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Global Daily News

  • CareerBuilder acquires remaining stake in Textkernel

    CareerBuilder has acquired the remaining stake in Textkernel that it didn’t already own. It had initially acquired a majority stake in 2015.Amsterdam-based Textkernel provides semantic search and matching technology for résumé/cover letter databases. It also provides multilingual résumé/cover letter parsing. Its technology can also convert résumés, cover letters or social media profiles into a searchable database record.“As the competitive landscape has intensified, we’ve seen job boards explore other areas of talent acquisition technology and expand their services beyond online job postings,” SIA Research Manager David Francis said. “Acquiring TextKernel seems like a natural extension of CareerBuilder’s strategy to become a holistic and end-to-end recruiting platform.”The transaction closed this month; terms were not disclosed. The Textkernel brand will remain and now operate as a CareerBuilder company. Textkernel’s semantic search has already been fully integrated into CareerBuilder’s Talent Discovery Platform.“In our nearly 25 years of experience, we’ve learned that recruiters speak one language and candidates speak another,” said CareerBuilder CEO Irina Novoselsky. “We are building and implementing technologies that close this gap for both sides of our marketplace, and improve every stage of the hiring process.&rdquo […]

  • Top-paid IT role commands salary of $175,000 to $300,000

    Chief information officers and chief technical officers top this year’s list of highest-paid technology professionals, according to the annual technology salary guide released by Mondo, an IT and digital marketing staffing provider headquartered in New York.CIO and CTO salaries range from $175,000 to $300,000 this year, according to the report. Chief information security officer ranked second, with salaries ranging from $175,000 to $275,000.Artificial Intelligence and machine learning skills are in high demand, with AI developer and machine learning engineer salaries now reaching $200,000.Technology jobs with the highest salaries of $200,000 or more in 2019 include: CTO/CIO: $175,000 to $300,000 Chief information security officer: $175,000 to $275,000 Demandware developer: $127,500 to $237,500 Solutions architect: $155,000 to $220,000 IoT solutions architect: $140,000 to $210,000 Data architect: $145,000 to $210,000 Salesforce solution architect: $145,500 to $210,500 Database architect: $145,000 to $200,000 Project manager; $75,000 to $200,000 AI developer: $120,000 to $200,000 Machine learning engineer: $120,500 to $200,000 “Cybersecurity and IT security skills continue to net some of the highest salaries within technology departments,” Mondo CEO Tim Johnson said. “Salaries are expected to keep climbing as the talent gap widens, resulting in a projected shortfall of 3.5 million security-related roles by 2021. We are also seeing some tech salaries that remain flat for less competitive, yet necessary skill sets, like QA and network support.”The technology salary data are based on Mondo’s placements over the past year in New York City, San Francisco, Washington DC, Philadelphia, Denver, Boston, Chicago, Los Angeles, Atlanta and Dallas. […]

  • Empresaria Group gross profit up 4% in 2018

    Empresaria Group plc plans to report gross profit, or net fee income, for 2018 will be up 4% compared to the previous year, according to a trading update released today. The London-based staffing provider plans to release full results on March 13.Profit for the year is expected to be in line with current market expectations, Empresaria announced. However, diluted adjusted earnings per share is now expected to be slightly lower than the prior year.Profit increased year over year in three of the company’s four regions — the UK, Asia Pacific and Americas. Empresaria also noted strong performances from its IMS offshore recruitment services business; Alternattiva business (outsourcing, perm and temporary business in Chile); LMA professional services business; ConSol Partners IT business; and Rishworth aviation business.Those business lines helped offset the expected weaker results from Headway technical and industrial business and Skillhouse IT business, according to the company. The weaker results are due to the previously highlighted changes to temporary worker legislation in Germany and Japan.Empresaria also said it’s working to bolster its management team.“We are investing approximately £0.5 million in 2019 to strengthen our central management team, including the appointment of Rhona Driggs as chief operating officer in November 2018,” Empresaria CEO Spencer Wreford said. “This will enable us to increase the support to our brands in the key areas of business development, technology, training and marketing to drive incremental value as part of our strategy to build leading brands in niche sectors.”Empresaria has 20 brands operating in 21 countries worldwide, including the US.Empresaria shares were down 0.75% to £66.50 at 7:45 a.m. Eastern time; the company had a market cap of £32.84 million, according to FT.com. […]

  • Spherion appoints new president

    Spherion, a franchise recruiting and staffing provider, appointed Rebecca Rogers Tijerino as president. She is filling the role held by Sandy Mazur, who will retire in March.Prior to joining Spherion, Rogers Tijerino was CEO of The Intersect Group, a national finance, accounting and IT staffing and consulting firm. She has also held executive leadership positions in local, regional and global firms and has experience in talent solutions including professional and general staffing, executive recruitment, MSP/VMS, RPO and consulting.Spherion, founded in 1946, operates in more than 100 markets nationwide and targets professional services such as IT, engineering, finance and accounting as well as industrial and administrative sectors.&nbs […]

  • When humans take the place of robots — The Staffing Stream

    Usually, it’s humans worrying that robots will take their jobs. In a twist, Japan-based Henn-na Hotel chain is replacing robots in its hotels with humans. However, the South China Morning Post reported the hotel still plans a new generation of smarter robot workers. Craig Johnson, senior managing editor at SIA, examines the impact of AI on jobs in a new The Staffing Stream blog post. […]

  • UK – Empresaria trading update in line with market expectations, net fee income to rise 4%

    Empresaria (AIM: EMR), the UK-based international specialist staffing group, provided a trading update for the financial year ended 31 December 2018.According to the Board, Empresaria has delivered profit in line with current market expectations for the financial year ended 31 December 2018.The group is expected to deliver a 4% increase in both net fee income and adjusted profit before tax against the prior year. The Board added that this profit represents another historic high level for the group. However, Empresaria said that due to the mix of profit across brands with different non-controlling interests, diluted adjusted earnings per share is now expected to be slightly lower than the prior year.There was a growth in profit over the prior year in three of our four regions, the UK, Asia Pacific and Americas, with notably strong performances from IMS (Offshore Recruitment Services), Alternattiva (outsourcing, perm and temporary business in Chile), LMA (professional services), ConSol Partners (IT) and Rishworth (Aviation).This helped offset the expected weaker results from Headway (technical & industrial) and Skillhouse (IT) due to the previously highlighted changes to temporary worker legislation in Germany and Japan.“With these legislation changes now in place, our businesses in these countries are now focused on rebuilding their temporary worker levels during 2019,” the group stated.In July 2018 the group finalised its investment in Grupo Solimano, a provider of outsourced and temporary staffing services in Peru.“We are pleased with its performance since joining the group, which has been in line with our expectations,” Empresaria stated.Spencer Wreford, Chief Executive Officer of Empresaria, commented, "This result again demonstrates the benefit of Empresaria's diversified business model, delivering another year of profitable growth, despite regulatory challenges in two of our key markets. We are focused on delivering organic growth and in line with this we are pleased to have launched a new brand, 4ward Talent, at the end of last year to focus on the volume IT sector as well as new office openings this month in Brisbane, Australia and Auckland, New Zealand for recruitment in the creative, digital and marketing sectors.”"We are investing approximately £0.5 million in 2019 to strengthen our central management team, including the appointment of Rhona Driggs as Chief Operating Officer in November 2018. This will enable us to increase the support to our brands in the key areas of business development, technology, training and marketing to drive incremental value as part of our strategy to build leading brands in niche sectors. We have a clear vision to be a leading, international, specialist staffing Group, and are confident we have a plan in place to deliver on this,” Wreford said.The trading update comes ahead of the group’s final results due on 13 March 2019.As of last trade Empresaria Group traded at £66.48, down 0.78% on the day and 2.27% above its 52-week low of £65.00, set on 15 January 2019. Based on its current share price the company has a market value of £32.84 million. […]

  • Switzerland – Michael Page Swiss Job Index records 16.4% growth in January job ads

    The number of jobs advertised throughout Switzerland recorded a growth of 16.4% between January 2018 and January 2019, according to the latest Michael Page Swiss Job Index.Meanwhile, the number of advertised jobs across Switzerland between December 2018 and January 2019 showed a decrease of 2.6%.The top sectors that showed the highest monthly (December 2018 – January 2019) growth, were financial services and IT. Top Job Categories Monthly Growth(Dec 2018 – Jan 2019) Year-on-Year Growth(Jan 2018 – Jan 2019) Risk Managers +10.7% +10.7% Trust Managers +7.6% +3.9% Information Managers +7.0% +30.1% Software Developers +6.0% +26.6% IT Programmers +6.0% +24.3% “Given the strong growth in advertised jobs and the low unemployment rate (2.6%), talent acquisition and retention will continue to be a challenge for employers in 2019. For these reasons, we highly recommend that employers and candidates consider all options – permanent, temporary and interim”, Nicolai Mikkelsen, Executive Director, Michael Page, said.Year-on-year regional growth was highest in the Mid region (+23.5%), Lake Geneva (+20.9%) and the Eastern region (+20.3%). In line with the seasonal dip, all regions experienced a drop in the level of advertised jobs on a monthly basis (December 2018 – January 2019). Regions Monthly Growth(Dec 2018 - Jan 2019) Year-on-Year Growth (Jan 2018 – Jan 2019) Mid (BE, FR, JU, NE, SO) -0.6% +23.5% Lake Geneva (GE, VD, VS) -3.0% +20.9% East (AI, AR, GL, GR, SG, SH, TG) -1.8% +29.3% North (AG, BL, BS) -2.5% +11.9% Central (LU, NW, OW, SZ, UR, ZG) -6.4% +11.5% Zurich (ZH) -3.1% +8.9% &nbs […]

  • World – South Korea and Greece have among the highest rates of overqualified foreign workers in OECD

    Over a third of highly-educated immigrants in employment across Organisation for Economic Co-operation and Development countries are overqualified for their jobs with the exact rate differing significantly between countries, according to Statista.  The OECD definition of the over-qualification rate is the share of the highly educated who are working in a job that is ISCO-classified (The International Standard Classification of Occupations) as low or medium skilled. South Korea (74.5%) and Greece (60.7%) have among the highest over qualification rates among foreign-born workers in the group of OECD countries selected by the Statista study.Excluding Portugal, that share is particularly high across Southern Europe where many highly educated migrants are in low and medium-skilled jobs.Spain (53.6%) and Italy (51.7%) are notable examples of Southern European countries where the foreign-born population has a far higher over-qualification rate than the native-born population.“In many developed countries, a considerable share of workers are overqualified for their jobs,” Statista stated. “The issue has become increasingly common in recent years, most evident in economies with competitive job markets.”“While it can of course result in positive effects for some organisations such as an employee performing at a higher level, it can also result in higher salary expectations, a lower level of satisfaction and a higher chance of a person leaving their job,” Statista stated. […]

  • UK – Contract Watch: Staffing 360, Dillistone Group, ApplyDirect

    Staffing 360 Solutions Inc. (NASD: STAF), a staffing provider operating in the US and UK, announced that its recently acquired recruitment business Clement May, has renewed its contract with British American Tobacco to provide Resource Process Outsourcing and staffing services. Mark Darby, Staffing 360 Solutions' President of Professional Staffing (UK) said, "This renewal is validation that our acquisition of Clement May continues to deliver desired results. The exceptional service that is provided by the team at Clement May to BAT has led to this moment, representing the potential delivery of strong increased revenue."Dillistone Group (DSG: LSE), the UK-based supplier of recruitment software for the recruitment industry, announced that it has been awarded a three-year contract renewal by a globally known recruitment organisation. This contract represents, by value, the largest in the history of the group. Dillistone Group was unable to comment on further details of the contract renewal when contacted by SIA. The group also posted an update on its GatedTalent division, stating that it has seen a continuing acceleration in revenue. While it still expects the division to be loss making as a whole in 2019, the Board now expects that the business will make a contribution and become cash generative in the final quarter of 2019.Australia-based job search site ApplyDirect announced that it has secured individual government contracts with Development Victoria; the Department of Health & Human Services (DHHS); and the Department of Environment, Land, Water and Planning (DELWP). The services to be supplied under these contracts range from integration with the Victorian government jobs portal, to providing a customer branded careers portal on a managed services basis. […]

  • Australia – Ignite CEO announces resignation

    Australian recruitment firm Ignite (IGN:ASX), formerly known as the Clarius Group, announced that Julian Sallabank has tendered his resignation as CEO.Sallabanks’ final date will be determined subject to the appointment of a new CEO to ensure a smooth transition or such other date as agreed with the Board.Ignite said it will now commence an executive search and expects to announce the new CEO Officer after this process.Sallabank joined the Board of Ignite in October 2014 and transitioned to the CEO role in December 2016. He oversaw many initiatives during his tenure including the implementation of back office efficiency programs, improvement of company culture, enhancement of the human resource and learning and development functions, and a senior management restructure.“These initiatives have laid the foundations for Ignite to now confidently embark on the next stage of its transformation,” the group stated.“The Board takes this opportunity to thank Julian for his significant professional and personal contribution to Ignite and its staff, clients and candidates,” Ignite stated.Sallabank is set to take over as managing director of a medical research commercialisation growth fund based in Melbourne.Ignite also announced that it has appointed Fred van der Tang as a Non-Executive Director of Ignite.Van der Tang is a highly experienced senior executive at international level, having built a career of over 20 years at Randstad. In his time at Randstad, he held senior roles which included responsibility for Randstad’s operations in the Netherlands, Italy, the UK and Australia/New Zealand. He also served as Chief Sales Officer at a global level.Following Randstad, van der Tang was General Manager Australia/New Zealand for Ascender HCM, a private equity owned payroll and human capital management provider. He is currently Chief Executive Officer and a shareholder of Make it Cheaper, a privately- owned Australian company providing business energy price comparison and switching.Ignite Non-Executive Chairman Garry Sladden commented, “Van der Tang is a highly respected recruitment leader and will be a significant asset to the Board as we continue to improve our performance for shareholders, clients, candidates and staff.”Van der Tang commented, “Ignite has been a leader in the Australian recruitment marketplace and it is with great pride that I join the Board. The recent transformation initiatives and senior management additions provide a great foundation upon which to grow and I hope to make an immediate and meaningful contribution to the next chapter of Ignite.”Ignite operates in 11 cities across Australia and China and employs more than 200 people. […]

  • World – Oil and gas professionals fear talent crisis, report finds

    Almost half, or 48%, of oil and gas professionals across the world are concerned about an impending talent emergency, according to the third annual Global Energy Talent Index (GETI) report from Airswift, the global workforce solutions provider for the energy, process and infrastructure sectors, and Energy Jobline, a jobsite for the energy and engineering industries.The report recommends that oil and gas businesses must continue evolving their approach to attracting and recruiting talent. The index found that 40% of survey respondents believe the oil and gas sector is already in the grip of a crisis, with a further 28% expecting one to hit within the next five years.However, the survey also suggests optimism in recruitment. When asked whether they would pursue a career in the sector if they were entering the energy industry now, a large majority of oil and gas professionals said yes. Most, or 81% of those aged 25 and under remain enthusiastic about a career in oil and gas.“While the pace of recruitment may have slowed during the downturn, it is clear that the quality of these efforts remains strong,” the index stated.Janette Marx, CEO at Airswift, commented, “In recent years, GETI has proven hugely successful at providing hiring managers with the insights they need to manage the expectations of the energy workforce. This year is no different, as we respond to what they told us was their biggest concern: the energy skills gap.”“Having cut graduate schemes, apprenticeships and training during the downturn, the sector is playing catch-up. But it’s making good progress. And, most importantly, companies now realise that no matter what happens economically, they need to consistently invest in their talent strategies,” Marx said. Other key findings in the report within oil and gas showed that remuneration is on the rise as 41% of non-hiring professionals report an increase in pay over the past 12 months, with 21% citing a raise of more than 5%.Meanwhile, 65% of non-hiring professionals anticipate further pay rises in 2019. Hiring managers share their optimism, with 63% expecting to see an increase.The majority, or 92%, of professionals would consider relocating to another region for their job, with career progression opportunities the number one factor attracting talent to a region.The report also found that renewables remains the biggest source of competition for talent, with 42% of those open to switching sectors attracted to the industry Hannah Peet, Managing Director at Energy Jobline, commented, “Competition between sectors remains as fierce as ever, but oil and gas employers are well set to succeed.” “Leaders and hiring managers recognise that the world has changed and the desires of young people are different, with only 30% of those aged under 25 believing that higher pay effectively attracts talent. The trick now is to respond by working to provide individuals with more opportunities to grow their careers, travel and work with new technologies.&rdquo […]

  • Australia – Managers and professionals are highest hourly earners, research finds

    Managers and professionals in Australia had the highest average hourly earnings according to results from the Survey of Employee Earnings and Hours, published by the Australian Bureau of Statistics.The survey is conducted every two years with the latest Bureau data referencing the period May 2018.While managers and professionals had the highest average hourly earnings at AUD 60.40 (USD 43.10) and AUD 54.00 (USD 38.50) per hour, respectively, the lowest hourly earners, on average, were sales workers at AUD 28.50 (20.34) and labourers at AUD 29.50 (USD 21.05).The average for all employees was AUD 39.10 (USD 27.90) per hour.Across industries, average hourly earnings were lowest in the accommodation and food services industry (AUD 25.90) (USD 18.48), and highest in the Mining industry (AUD 60.60) (USD 43.25). "Full-time employees, who make up the majority of employees, received an average earnings of AUD 1,699 (USD 1,212) per week, which would be around AUD 88,000 (USD 62.800) in annual terms,” Bruce Hockman, Chief Economist at the ABS, said. “The latest figure for all employees, which also includes people working part-time, was AUD 1,289 (USD 919).”Weekly earnings were higher for men working full-time than for women working full-time. However, women working part-time earned slightly more, on average, than men working part-time. Meanwhile, the top quarter of earners in Australia received more than AUD 1,686 (USD 1,203) per week, while the lowest earning quarter received less than AUD 682 (USD 486). Further data from the Bureau also showed that the most common method of setting pay was a collective agreement (40%), followed by an individual arrangement (37%). Less than a quarter of employees were paid according to an award (23%). "Men were more likely to have their pay set by an individual arrangement (44%), whereas the most common method for women was a collective agreement (42%)," Hockman said. […]

  • World – Randstad Sourceright: Employers believe talent strategy is key to business growth

    With business leaders increasingly concerned about the global economy, organisations now see talent as the key to value creation, according a report published by Randstad Sourceright.The report, “2019 Talent Trends”, is based on a survey of more than 800 C-suite and HR leaders, and 1,700 professionals across 17 countries. The annual survey provides a global snapshot of how talent leaders are uniquely positioned to make a significant impact on their business' performance.According to Randstad Sourceright’s report, HR leaders say their role in building nimble workforces and constructing holistic talent models is more critical than ever before. The report showed that 83% of HR feel their goal is to have a measurable impact on their business' performance, up from 57% in 2016. Meanwhile, 80% of talent leaders say their recruitment strategy is more about value creation than cost savings."If your organisation is not able to attract, develop and retain new skills, it will almost certainly fall behind," Rebecca Henderson, CEO of Randstad Sourceright, said. "Whether through data insights, research or customer engagement, human capital leaders are in the driver's seat to deliver these skills and accelerate growth and market share."Randstad Sourceright stated that by adopting a so-called 'total talent' approach, employers aren't just filling jobs, but thinking about how to best get the work done through traditional and non-traditional means. Talent scarcity, the widening skills gap, and better access to technology and data are driving the shift towards a more integrated approach to workforce planning.Among the C-suite and HR leaders who have already adopted this total talent model, 98% report being extremely or very satisfied. And among organisations that have yet to implement this approach, 76% plan to do so in the next 12 months.The report also offers a look at how different markets around the globe are eager to adopt total talent strategies. Countries that face the greatest talent shortages, such as Germany, Japan and the UK rank highest on the indices for total talent readiness and adoption. […]

Latest Research

  • Legal Calendar 2019: Americas

    Key Findings Employers in federally-regulated workplaces in Canada will be affected by changes to Canada’s Labour Code; while recruitment agencies in Quebec and British Columbia will be required to apply for licenses. Federal contractors and employers in 20 U.S. states must pay increased minimum wages from Jan.1, 2019. Federal bodies intend to issue new regulations on the wage and hour overtime rule, the joint employer standard and changes to the H-1B visa in 2019. Employers in Chile, Colombia and Mexico must comply with changes in employment law. Further information on most of the developments in this report can be found in the Americas Legal Updates published quarterly. To download a copy of this report click below: Legal Calendar_2019_Americas_20190122 - You do not have permission to view this object. […]

  • MSP RFP Template

    IntroductionA well written RFP contains specific CW program information and clearly states your future goals and requirements. It should encourage bidders to respond to each question in a way that they clearly state and quantify the added value they will deliver (together with any dependencies), making it easier to evaluate on an “apples- to-apples” basis. You should dissuade respondents from simply reaching into their answer library for “canned” answers that are irrelevant or difficult to evaluate. You want to let providers propose creative, relevant, and cost-effective solutions by focusing on the end, not only on the means. This document will help will help ensure you get there.To download the full document, please click below: MSP RFP Template 20190113 - You do not have permission to view this object. […]

  • North America Legal Update Q4 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem across North America in Q4 2018:Canada Bill C-86 introduces reforms to labour standards for federally-regulated employers and temporary work agencies Federal employers required to establish a pay equity regime Ontario government reverses or repeals earlier employment standards reforms British Columbia provides protection for foreign workers Quebec introduces equal pay based on employment status and agency licensing United States Federal court rules ACA unconstitutional  Appeals court upholds Browning-Ferris “indirect control” test but declares it too broad  Proposed changes to the H-1B visa Dynamex only applies to wage orders Ohio provides safe harbor for data breaches Employers have a duty to protect sensitive employees’ data on accessible system Minimum wage increases in over 20 states Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action.To download a pdf copy of this update click below: North America Legal Update Q4 2018_20190111 - You do not have permission to view this object. Canada 1.  Bill C-86 introduces reforms to labour standards for federally-regulated employers and temporary work agenciesOn December 13, 2018, Bill C-86, the Budget Implementation Act, 2018 received Royal Assent. The Act is wide-ranging and introduces significant changes to Canada’s Labour Code prescribing minimum labour standards for federally-regulated employers including airlines, ports, railways and telecommunication companies. The amendments are similar to those introduced by Ontario’s Bill 148 which has since been either reversed or modified by the incoming Conservative government elected in June 2018 (see item 3 below).The Bill C-86 reforms include a proposal to enact a new division dealing with temporary help agencies. Agencies will not be allowed to prevent their employees from obtaining assignments or establishing employment relationships with their clients, or to charge any fees for such reasons, similar to prohibitions found under provincial employment standards legislation. In addition, the provisions on "equal treatment" will apply to temporary help agencies.The Bill introduces the concept of "equal treatment" prohibiting employers from paying some employees less than others due to a difference in their employment status. The prohibition applies if the following conditions exist: the employees work in the same industrial establishment; they perform substantially the same kind of work; the performance requirements are substantially the same and the work is performed under similar working conditions. This new labour standard will not apply, however, if the difference in pay was due to a distinction based on seniority, merit, production or any other criterion prescribed by regulation. Furthermore, an employer will be prohibited from reducing an employee's rate of wages in order to comply with the equal treatment obligation. Employees, including agency workers, will have a right to request a review of their wages and employers (i.e. agencies in the case of agency workers) will be required to respond by either increasing their wage rate or providing a written explanation justifying the difference.Misclassifying individuals as independent contractors is also now expressly prohibited. Further, the employer will bear the onus of proving an individual is not an employee.Other amendments to the Labour Code proposed in the Bill relate to working time, annual leave and other types of family leave; notice periods and procedures for individual and group terminations; and enables employees to be reimbursed for reasonable work-related expenses. In addition, an employer, within the first 30 days of an employee's employment, will be required to provide employees with information regarding their rights and obligations and a written statement containing information relating to their employment. Any changes to the information must be provided to the employees within 30 days of the change. Employers will have to post the information in readily accessible places and also retain any employment statement for 36 months after the employee's employment ends and provide additional copies upon the employee's request.The employment standards reforms will make federal employment standards the most comprehensive and most stringent in the country. At this point, the timing for implementing these changes is not entirely clear, but all of the changes will likely be rolled out in 2019. Although there is no change to the federal minimum wage, implementation of the reforms will result in some cost to employers. Further details are provided by McCarthy Tétrault LLP. 2.  Federal employers required to establish a pay equity regimeOn December 13, 2018, an “Act to Establish a Proactive Pay Equity Regime within the Federal Public and Private Sectors (Pay Equity Act)” received Royal Assent. Proactive pay equity legislation has existed provincially in Ontario and Quebec for many years. This is the first attempt by the federal government to implement a similar approach.Under the Act, federally regulated public and private employers with at least 10 employees will be required to establish a pay equity plan within three years of becoming subject to the Act that: Indicates the number of employees of the employer; Identifies job classes within their workplace; Indicates the gender predominance of the identified job classes (i.e. female or male predominant, or gender neutral); Evaluates the value of work performed by each job class; Identifies the compensation associated with each job class; Compares the compensation associated with female-predominant and male-predominant job classes of similar value; Sets out the results of the comparison and identifies which female-predominant job classes require an increase in compensation; Identifies when the increases in compensation are due; and Provides information on the dispute resolution procedures available to employees. The Pay Equity Act also requires employers to: Update pay equity plans every five years; Post employee notices regarding their Pay Equity Act obligations and their progress toward “key milestones in fulfilling these obligations”; Provide employees an opportunity to comment on the proposed pay equity plan and updates, and consider those comments before finalizing the plan; and File “annual statements” with the Pay Equity Commissioner regarding their pay equity plans. The government will establish a Pay Equity Commissioner within the Canadian Human Rights Commission to administer and enforce the Act including providing assistance to employers and facilitating dispute resolution as well as issuing binding orders to resolve complaints.Although federally-regulated employers have three years in which to comply with the requirement to establish a pay equity plan, businesses should audit their employees pay and ensure they are ready to comply with the Act’s requirements. Where significant discrepancies are highlighted, employers may need to consider ways to address any gaps in pay and gender-representation in different job classes. 3.  Ontario government reverses or repeals earlier employment standards reformsIn June 2018, the Conservatives won the provincial election ousting the Liberals who had governed Ontario for 15 years and on Oct. 2, 2018 the new Premier, Doug Ford, announced that the government would be “getting rid” of many of the reforms introduced in Bill 148, the Fair Workplaces, Better Jobs Act, which only became law on November 22, 2017.This promise materialized in the form of Bill 47, the Making Ontario Open for Business Act, 2018 which removes the controversial provision of equal pay for temporary workers which came into force on April 1, 2018. The entitlement to be paid the same rate as the client’s employees for doing substantially the same work, with the same skill and effort under similar conditions, laid the ground for a similar federal law reported above.Bill 47 contains a number of employer-friendly changes that came into effect on January 1, 2019 including significant modifications to leave of absence entitlements, scheduling requirements, the minimum wage, and equal pay for equal work provisions under the Employment Standards Act, 2000.Bill 47 also removes the presumption that a worker is an employee unless the employer can prove they are an independent contractor. However, there is still an express prohibition against misclassification by employers.The Bill also leaves in place the provision that temporary agencies must give workers notice of the early termination of assignments of 3 months or more, unless they are able to offer an alternative assignment of at least one week, during the notice period.In further reforms, on December 6, 2018, the Ontario government introduced Bill 66, An Act to Restore Ontario's Competiveness by amending or repealing certain Acts ("Bill 66"). On the same date Bill 57, Restoring Trust, Transparency and Accountability Act, 2018 (“Bill 57”) received Royal Assent. Bill 57 postpones the coming into force of the Pay Transparency Act, 2018 from January 1, 2019 to a date to be determined by the government.If passed, Bill 66 would amend certain hours of work and overtime rules in the Employment Standards Act, 2000. In particular, employers will no longer be required to obtain the approval of the Director of Employment Standards to permit overtime in excess of 48 hours per week or to make agreements that allow employers to average their employee’s hours of work for the purpose of determining the employee’s entitlement to overtime pay.An employee’s hours of work may exceed the limit of 48 hours per week if the employee has made an agreement with the employer that he or she will work up to a specified number of hours over the limit and his or her hours in a work week do not exceed those specified in the agreement. Hours may be averaged in accordance with the terms of an averaging agreement between the employee and employer over a period of up to 4 weeks.Bill 66 also proposes to eliminate an employer’s obligation to post the Employment Standards Poster in the workplace.While employers may welcome the removal of some of the legal entitlements of Bill 148, if changes were made to employees’ contracts or collective agreements to incorporate these rights, once the entitlement is a contractual obligation it cannot be removed unilaterally. Employers should therefore proceed with caution and take appropriate legal advice. 4.  British Columbia provides protection for foreign workersOn November 8, 2018, the Temporary Foreign Worker Protection Act (Bill 48) (the "Act") received Royal Assent but will not be in force until regulations are enacted. The Act aims to provide additional protection for foreign workers and to hold BC employers and recruitment agencies accountable."Foreign workers" is broadly defined under the Act as a foreign national who is an employee, as defined in the Employment Standards Act, in British Columbia or seeking employment in British Columbia.The BC government will establish two separate registries – one for foreign worker recruiters and one for employers. Recruiters and recruitment agencies must obtain licences; while employers who wish to recruit foreign nationals for employment, either directly or through recruiters, must hold registration certificates issued by the provincial government. The Act provides criteria for issuing, refusing, suspending, or cancelling a licence or registration. The registration process will be online and free.The Act prohibits several practices.  Foreign worker recruiters and employers must not: Produce or distribute false or misleading information relating to recruitment services, immigration, immigration services, employment, housing for foreign workers or the laws of British Columbia or Canada; Take possession of or retain a foreign national's passport or other official documents; Misrepresent employment opportunities, such as a position, duties, length of employment, wages and benefits or other terms of employment; Threaten deportation or other action for which there is no lawful cause; and Take action against or threaten to take action against a person for participating in an investigation or proceeding by any government or law enforcement agency or for making a complaint or inquiry to any government or law enforcement agency. An individual who is found to have contravened the Act may be fined up to CAD50,000 (USD36,850). In certain cases, an individual who has contravened the Act may be imprisoned for a term of up to one year or may face a combination of a fine and imprisonment. A corporation that is found to have contravened the Act may be liable for a fine of up to CAD100,000 (USD73,700).Regulations, yet to be published, will set out the details of the licensing and registration scheme in due course. However, recruitment agencies and employers should audit their current recruitment practices to ensure they can comply with the requirements of the Act. 5.  Quebec introduces equal pay based on employment status and agency licensingJanuary 1, 2019 marked the coming into force of Bill 176, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance (Bill 176). This continues the trend to update employment standards legislation across the country.Bill 176 prohibits an employer from remunerating an employee at a lower rate of pay than that granted to its other employees who perform the same tasks in the same establishment, solely because of the employee's employment status and because that employee typically works fewer hours each week. This also applies to personnel placement agencies who are prohibited from remunerating employees at a lower rate than that paid to employees of the client enterprise performing the same tasks.Personnel placement agencies or recruitment agencies placing foreign temporary workers will need to be issued a licence by CNESST. Employers who work with unlicensed agencies could be fined up to CAD6,000 (USD4,420).Under Bill 176, an employee will also have the option to refuse to work more than two hours beyond their normal daily hours. Currently, an employer can require employees to work up to four hours longer. An employee can also refuse an overtime shift if the employee is not given five days’ notice subject to some exemptions. Bill 176 will also change the length of time an employee must be employed to receive three weeks’ vacation from five years to three.All of the amendments pertaining to placement agencies and recruitment agencies will come into force on the date of coming into force of the first regulation made under these new provisions. The government will issue regulations to define what constitutes a placement agency, a recruitment agency, a client enterprise and a temporary foreign worker; establish categories of licences; determine the period of validity of a licence and specify any applicable condition; prescribe administrative measures; and determine the obligations of a client enterprise that retains the services of an agency.Further details of Bill 176 are provided by Stikeman Elliott. United States 1.   Federal court rules ACA unconstitutionalOn December 14, 2018, a Texas federal court declared the entire Affordable Care Act (ACA) unconstitutional. However, employers’ ACA obligations remain in place despite the court ruling, as District Court Judge Reed O’Connor granted summary judgment only on the ACA’s constitutionality but did not issue a nationwide injunction against its enforcement.The court held that the individual mandate is no longer valid due to the reduction of the tax to USD zero last year under the Tax Cuts and Jobs Act.  Judge O’Connor further ruled that the individual mandate was essential to the ACA, and if it fails, the entire statute fails.A group of Republican-led states brought the lawsuit. A coalition of Democratic state attorneys general, led by California’s Xavier Becerra, intends to appeal. Congressional Democrats also plan to appeal. Judge O’Connor stayed his ruling on Dec. 30. 2018, pending an appeal, according to AP News.The Departments of the Treasury, Labor, and Health and Human Services released a proposed rule in November 2018 to expand the use of health reimbursement arrangements (HRAs) and other account-based group health plans.  The proposed rule would allow employers to terminate their existing medical plans and shift their employees to the individual insurance market. This is in response to President Trump’s Executive Order 13813, which directed the Departments to consider proposing regulations that would (1) increase the usability of HRAs; (2) expand employers’ ability to offer HRAs to their employees; and (3) allow HRAs to be used with nongroup or individual health insurance coverage. Littler provides further details of this proposal and the background to it.It is likely that an appeal will proceed but in the meantime this ruling has no impact on the requirements placed on employers. 2.  Appeals court upholds Browning-Ferris “indirect control” test but declares it too broadIn a long-awaited decision, the D.C. Circuit Court of Appeals has upheld (Browning-Ferris Industries of Calif., Inc. v. NLRB, D.C. Cir., No. 16-1028, 12/28/18) the controversial joint-employer standard articulated by the National Labor Relations Board (NLRB) in its 2015 Browning-Ferris decision.Controversially, the NLRB had departed from precedent in concluding that Browning-Ferris and Leadpoint were joint employers of the workers in the petitioned-for unit. The NLRB had ruled that as the common law test for joint employment did not require the putative employer to physically exercise its right to control the employees in question, it followed that when control was exercised, there was no requirement that such control be direct and immediate. The NLRB could therefore consider a putative joint employer’s reserved right to control the workers at issue, as well as any indirect control they had exercised over the workers, as factors relevant to determining joint-employer status.The D.C Court of Appeals affirmed the NLRB’s articulation of the joint-employer test as including consideration of both an employer’s reserved right to control and its indirect control over employees’ terms and conditions of employment. But because the Board did not confine its consideration of indirect control consistently with common-law limitations, the petition for review of the decision was granted and the case was remanded to the NLRB for further proceedings consistent with their opinion.On Sept. 14, 2018 the NLRB published a Notice of Proposed Rulemaking to reverse the 2015 decision of the NLRB in the Browning-Ferris case.  Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship. The National Labor Relations Board extended the time for submitting comments regarding its proposed rulemaking to Monday, January 14, 2019.The NLRB’s proposed rule excludes any indirect control by a potential joint employer, so it will be interesting to see whether they return to the drawing board to redraft the proposed rule in the light of this decision. 3.  Proposed changes to the H-1B visaOn November 30, 2018, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that seeks to (1) increase the number of H-1B visa recipients who have master’s degrees or higher from U.S. academic institutions; (2) ensure “a more meritorious selection” of H-1B visa beneficiaries; and (3) create a modernized online registration process for employers from which the lottery selection process would be conducted.The H-1B visa program allows U.S. employers to temporarily employ highly skilled foreign workers for a maximum of six years, after which the H-1B worker must change to another temporary status, seek lawful permanent residence in the United States, or depart the United States.Federal regulations allocate 65,000 H-1B visas to be granted annually (the H-1B “cap”), with an additional 20,000 H-1B visas reserved exclusively for those holding a master’s degree or higher from a U.S. institution of higher education (known as the “advanced degree exemption”). For the past 5 years, USCIS has received more than 100,000 H-1B visa petitions within days after the annual filing period commences in April each year.Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days that H-1B cap petitions may be filed, the advanced degree exemption is selected prior to the H-1B cap. The proposed rule would reverse the selection order and count all registrations or petitions towards the number projected as needed to reach the H-1B cap first. Once a sufficient number of registrations or petitions have been selected for the H-1B cap, USCIS would then select registrations or petitions towards the advanced degree exemption. This proposed change would increase the chances that beneficiaries with a master’s or higher degree from a U.S. institution of higher education would be selected under the H-1B cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries.The proposed rule would also require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. USCIS expects that shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS.A public comment period ended on January 2, 2019, following which the federal agency plans to have the changes in place by April 1, 2019. 4.  Dynamex only applies to wage ordersIn our North America Legal Update Q2 2018, we reported that on April 30, 2018, the California Supreme adopted the restrictive “ABC test” used in other jurisdictions for determining when a worker qualifies as an independent contractor in a case Dynamex Operations West, Inc., under California’s Industrial Wage Orders. In adopting the ABC test, the court restricts the use of independent contractors by employers, to those individuals who have already established a business to provide services that are distinct from the business carried on by the employer.In October 2018, the California Court of Appeal clarified that the “ABC” test applies only to claims arising under the California wage orders and not to other issues such as determining employee status for purposes of workers’ compensation, wrongful termination, waiting time penalties, overtime, unfair competition and indemnity claims under the Labor Code (Garcia v. Border Transportation Group).Following the Dynamex ruling there were concerns that the rule would prompt a flood of litigation and that the ABC test would be applied more widely. This decision provides some comfort to businesses, that the test is limited to wage orders. 5.  Ohio provides safe harbor for data breachesOn August 3, 2018, Senate Bill 220, the Ohio Data Protection Act ("Ohio DPA") was signed into Ohio state law providing a safe harbor against data breach lawsuits provided businesses have implemented and maintained cybersecurity programs that meet certain industry-recognized standards.While other states require businesses to meet certain cybersecurity compliance standards or punish businesses that suffer a data breach, no other state provides an affirmative defense as an incentive to adopting industry-standard cybersecurity practices like the Ohio DPA.The Ohio DPA provides two incentives for businesses: (i) the DPA provides the opportunity for businesses to evaluate and improve their current program, which, as a result, lessens the likelihood of a data breach; and (ii) if such a breach still occurs, the DPA provides a safe-harbor defense against tort claims asserting that the business has inadequate data security measures.Further details of the law are provided by Jones Day. 6.  Employers have a duty to protect sensitive employees’ data on accessible systemOn November 21, 2018, Pennsylvania’s Supreme Court ruled that the University of Pittsburgh Medical Center (UPMC) had a legal duty to exercise reasonable care to protect sensitive employee information against an unreasonable risk of harm when that information is stored on an internet-accessible computer system (Dittman v. UPMC, No. 43 WAP 2017 (Pa. Nov. 21, 2018)). The legal duty to protect such information is not alleviated by the criminal acts of third parties who may breach an organisation’s computer system.In 2014, UPMC announced that it suffered a data breach of its computer system, resulting in the theft of sensitive personal and financial information of 62,000 UPMC employees and former employees. Employees alleged that such information was used to file fraudulent tax returns, resulting in actual damages.A group of employees filed a class action suit against UPMC in June 2014, alleging negligence and breach of an implied contract. In 2015, the trial court judge rejected the idea that there should be a new affirmative duty to protect sensitive information as the Pennsylvania Legislature only established a duty to provide notice of a data breach and it was not for the courts to alter the Legislature’s decision. The trial court held that the economic loss rule (a doctrine that precludes tort cases where the loss is purely monetary) barred the negligence claim.  In determining that employers have a legal duty to reasonably protect employee data, the Supreme Court, on appeal, found that UPMC created the risk of the data breach through affirmative conduct. The Court specifically noted the allegation that UPMC failed to provide “proper encryption, adequate firewalls, and an adequate authentication protocol.” Such actions represent affirmative conduct that created a risk of data breach. Finally, the Court held that the economic loss doctrine did not apply to the circumstances of this case and remanded the case for further proceedings consistent with its opinion.This decision makes clear that it is important for all businesses to adopt a security program that adequately protects the personal information it collects, stores and maintains. 7.  Minimum wage increases in over 20 statesAs of January 1, 2019, the minimum wage increased in over 20 states. A consolidated list of minimum wage changes around the country can be found here.Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action. […]

  • SI Report Webinar - January 2019

    In this webinar topics covered include: Global staffing industry forecast Canadian staffing industry outlook Online job advertising landscape How to sell your staffing firm Selling IT staffing to the healthcare sector Skilled trades update And of course the latest updates on the state of the economy, employment trends and developments in the US staffing industry.Download presentation slides  190108_SIReportWebinar.pdf 2.54 MB Select the play button to begin viewing.Note that we experienced audio difficulties during the start of this webinar. All audio difficulties are cleared up after 4:28 of this recording. We apologize for the inconvenience. […]

  • Legal Calendar 2019: EMEA

    Key Findings Employers in France must now deduct withholding tax and social security contributions from their employees pay; while statutory pay rates in the UK rise in April. Restrictions on temporary and flexible work take effect in Ireland, Italy and Norway, while employment rights increase across Germany, Denmark and the UK. After much delay, the National Minimum Wage Act was passed in South Africa and will come into force in 2019. Further information on most of the developments in this report can be found in the EMEA Legal Updates published quarterly. To download this report, click below: Legal Calendar 2019_EMEA_20190122 - You do not have permission to view this object. […]

  • MSP RFP Template

    IntroductionA well written RFP contains specific CW program information and clearly states your future goals and requirements. It should encourage bidders to respond to each question in a way that they clearly state and quantify the added value they will deliver (together with any dependencies), making it easier to evaluate on an “apples- to-apples” basis. You should dissuade respondents from simply reaching into their answer library for “canned” answers that are irrelevant or difficult to evaluate. You want to let providers propose creative, relevant, and cost-effective solutions by focusing on the end, not only on the means. This document will help will help ensure you get there.To download the full document, please click below: MSP RFP Template 20190113 - You do not have permission to view this object. […]

  • Europe Legal Update Q4 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem across Europe in Q4 2018:European Union Right to accrued holiday pay is not automatically lost if leave not taken France Implementation of withholding tax from 1 January 2019 Court characterises a delivery rider an employee Ireland Bill to prohibit zero hours contracts is passed Netherlands Progress on steps to replace DBA published Poland Changes to employee record-keeping and trade union protection for contractors UK Courts uphold worker status in two out of three gig economy cases Government announces ‘Good Work’ upgrade of worker’s rights Statutory pay rates increase from April 2019 Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action.To download a pdf copy of this update click below: Europe Legal Update Q4 2018_20190110 - You do not have permission to view this object. European Union Right to accrued holiday pay is not automatically lost if leave not takenIn November 2018, the European Court of Justice ("ECJ") issued judgment in two German cases which had been referred to the ECJ on the same point (Kreuziger v Berlin (C-619/16); Max-Planck-Gesellschaft zur Forderung der Wissenschaften eV v Shimizu (C-684/16)) regarding holiday pay. The Court stated that employees do not necessarily lose their right to receive holiday pay for any unused annual leave even if they did not apply to take holiday in the leave year in which it had accrued.The right to paid annual leave is an important principle of EU law as set out in Article 7(1) of the Working Time Directive. This provides that member states must ensure each worker is entitled to at least four weeks' paid annual leave, subject to the conditions of entitlement laid down in national legislation or practice. Article 7(2) says that workers may only receive payment in lieu of taking annual leave on termination. However, member states can provide for the loss of untaken leave at the end of a leave year, as long as the worker has had the opportunity to take it.ECJ case law confirms that it may be carried over when sickness absence and/or family leave prevents the worker from taking their holiday, and where the employer has failed to pay holiday pay. However, there may be limits on the period during which the worker has to use the carried-over leave (for example, in an earlier case, KHS AG v Shulte, the ECJ stated it should be taken within 15 months after the end of the relevant leave year).According to the ECJ in the German cases, if an employee's employment relationship is ended or terminated, the employee does not lose the right to be compensated for untaken paid annual leave, unless the employer can prove that it gave the employee an opportunity to take his/her annual leave. The ECJ in other cases has stated (Wuppertal v. Bauer and Willmeroth v. Brossonn) that this right also transfers to an employee’s heirs in the case of the death of an employee.Mr. Shimizu worked at a private German institute until 2013 and brought a claim for the payment of untaken leave for 2011-2012. His employer had invited Mr. Simizu to take the annual leave before the end of the relevant holiday year but did not force him to do so. Mr. Simizu did not take the leave and so, under German law, he lost the right to carry it over to the next leave year. The CJEU held that under the Working Time Directive (WTD) a worker who does not use the right to paid annual leave should only lose the leave if the employer has “diligently” brought to the worker’s attention the fact that leave will be lost. If the employer does not take these steps, they may be required to pay the employee in lieu of the untaken leave.In giving this ruling, the ECJ stated that its ruling should not be interpreted as an encouragement for employees not to take their annual paid leave in order to secure compensation in the event of the termination of their employment.This decision reiterates the importance European law places on a worker’s right to paid annual leave and places an onus on employers to ensure workers are reminded that they may lose that right if they do not take the leave. France 1.   Implementation of withholding tax from 1 January 2019From 1 January 2019, employers in France must deduct withholding tax (Prélèvement à la Source, or PAS) along with social security contributions from their employees’ salaries and pay it to the tax authority.The Tax Administration will calculate and provide employers with the rate of tax to be deducted, known as the PAS rate. This PAS amount will be deducted from their employees’ net salary and paid to the Tax Administration. The employer applies this rate and declares the withholding tax collected each month using the Single Staff Reporting Statement (or DSN), which must be filed by the 5th or 15th of the month following the payment of the employees’ salaries. It is not the company’s role to provide employees with any other information relating to the withholding tax. If an employee has a question concerning the calculation methods of the collection rate, the Tax Administration will be the right contact person.This new system does not change the fact that the employees will continue to file an annual tax declaration to declare all their income and claim any reductions or tax credits.This new procedure will apply to all employers including French branches and subsidiaries of foreign affiliates. Further information is available on the French government website and from Papaya Global. 2.   Court characterises a delivery rider an employeeThe Cour de Cassation, France’s highest civil court has ruled (Cass. soc. 28 November 2018 n°17-20.079) that a delivery rider using the services of an online platform ("Take Eat Easy"or TEE) which connects restaurants, clients ordering food, and delivery riders, may be considered to be an employee of the platform provider despite being labelled self-employed.To identify an employment relationship, the court looks for the existence of a subordinate relationship defined by "the performance of work under the authority of an employer which has the power to give orders and directives, to control the performance of work and to sanction the lack of performance of its subordinate". This assessment is made on the factual circumstances, irrespective of the terms and conditions of the contract.In this case TEE riders used an app which included a geo-tracking system that enabled the company to monitor the delivery rider's position in real time and to list the number of kilometers ridden. TEE also used a penalty mechanism provided for in riders’ contracts called ‘strikes’. The strikes system allowed TEE to exercise a disciplinary power over the delivery rider, through which progressive sanctions (such as financial penalties or calling riders for an interview) could be imposed for the failure of riders to comply with the numerous instructions set out in their service contracts. The Court of Cassation held that such sanctions could lead to the riders being in an employment relationship despite the absence of exclusivity and the rider’s freedom to choose his time and days of work.The case will now be referred back to the Paris Court of Appeal to re-examine the factual elements of the case and consider whether or not the courier was permanently legally subordinate to TEE.According to Mayer Brown, in 2016, two laws (Law n° 2016-1321 of 7 October 2016 for Digital Republic, and Law n° 2016-1088 of 8 August 2016) introduced a legal definition of online platforms and minimum social protection for platform workers. In 2018, a new law (Law n° 2018-771 of 5 September 2018) had introduced new provisions enabling platforms to set up a charter defining work conditions and social benefits. In such a case, online platform workers would be deemed self-employed workers. This section of the law, however, was censored by the French Constitutional Court for procedural reasons (cavalier législatif). Such provisions may well be reintroduced in a new draft law.This decision does not create a precedent for all gig workers but applies the established principles used to identify an employment relationship. If the 2018 law deeming such workers to be self-employed subject to a charter of rights is adopted, employers should take legal advice on complying with such law while also complying with the principles set out in this judgement of the Cour de cassation. Ireland Bill to prohibit zero hours contracts is passedThe Employment (Miscellaneous Provisions) Bill 2017 (The "Bill") has been passed by both houses of the Oireachtas following extensive public consultation and legislative amendments to remove a controversial proposal to make it an offence to wrongly designate the employment status of a worker.In summary, the Bill: prohibits the use of zero hours contracts, save in limited circumstances; provides for the provision of minimum payments in relation to low-paid employees who are required to be available to work but are not called into work; creates a new entitlement to banded hour contracts; obliges employers to notify employees in writing of 5 core terms of employment within 5 days of starting employment. Zero hours contracts are arrangements where an employee is either asked to be available for work, without the guarantee of work, or where an employee is informed that there will be work available on a specified day or days.Section 18 of the Organisation of Working Time Act 1997 (the "1997 Act") governs the current legal position regarding zero hour contracts. Section 18 provides that, in the event of an employer failing to require an employee to work at least 25% of the time that the employee is required by his/her contract of employment to be available to work for the employer, the employee is entitled to payment for the lesser of 25% of the contract hours; or 15 hours.Zero hours contracts under section 18 can be distinguished from 'casual work arrangements’ where the employee is under no obligation to accept a work assignment. There is no entitlement to payment under section 18 if an employee only has an "expectation" of, rather than an obligation to, work.The Bill replaces section 18 of the 1997 Act with a new section 18 entitled "Prohibition of Zero Hours Working Practices in Certain Circumstances and Minimum Payment in Certain Circumstances". The Bill retains the current definition of zero hours contracts which are prohibited by requiring "the number of hours concerned shall be greater than zero". There are exceptions to the absolute prohibition for work done in emergency circumstances; or short-term relief work to cover routine absences for the employer.The new section 18 retains the same entitlement to be paid the lesser of 25% of the contract hours or 15 hours. However, it introduces a minimum payment of three times the national minimum hourly rate of pay (as distinct from the employee's normal rate of pay) or three times the minimum hourly rate of remuneration established by an employment regulation order, "on each occasion" that the situation arises, e.g. on each occasion during a week when work is not provided.The Minister for Employment Affairs and Social Protection, Regina Doherty, TD, has confirmed that the Bill will come into force from 4 March 2019. Further details of the Bill are provided by Arthur Cox. Netherlands Progress on steps to replace DBA publishedIn its Coalition Agreement 2017-2021 the Cabinet had proposed a classification of workers and freelancers based on the rate of pay and duration of the contract to replace the much-criticised Deregulation of Labour Relations Act (Wet Deregulering Beoordeling Arbeidsrelaties “the DBA Act”).On 29 November 2018, the government published a 2nd “progress letter” to update the House of Representatives on the steps taken to that end. The proposals involve four measures:1.            Developing a web tool to determine employment status using a questionnaire based on current case law.2.            Clarifying the extent of “authority” or control that determines employment status.3.            Offering more protection to low-paid self-employed workers.4.            Providing independent entrepreneurs with the right to opt out of wage tax and employment insurance premiums.Some of these measures are expected to be completed during the course of 2019, with the protection for low-paid workers to be finalized by 1 January 2021.According to Jorgo Tsiris, Partner, Osborne Clarke the current non-enforcement policy of the DBA by the tax authorities will be continued until 1 January 2020 in any event.  As a result, the tax authorities will not retrospectively impose wage withholding tax and social security premiums in situations where there is some doubt as to whether a principal employer can exercise a certain degree of authority – even though in theory exercising authority may amount to employment status. Poland Changes to employee record-keeping and trade union protection for contractorsAs of 1 January 2019, new legislation comes into force affecting employers operating in Poland.Employers will be able to retain personnel files of employees either in hard copy (currently the only available option) or electronically, according to specifically prescribed procedures and the retention period for documentation relating to employees will be reduced from 50 to 10 years for all new employment after 1 January 2019, and under certain conditions in relation to employees employed between 1 January 1999 and 31 December 2018.Also, from the start of 2019, the eligibility criteria for trade union membership will be extended from employees only to include individuals performing work under a “contract of mandate”, or civil law contract, as opposed to a contract of employment. Workers employed on civil law contracts such as self-employed contractors, interns and volunteers, will not only get the right to create and join trade unions, but will also be entitled to privileges stemming from union membership.According to Ius Laboris, these include the right to be released from work with remuneration, or to special protection against termination, for participating in union activities. Where a contractor who is a trade union official has his contract terminated without the approval of the union, the employer may have to pay a severance payment amounting to six months’ remuneration. The amount of this payment will be a lump sum, unrelated to the loss suffered. However, if the contractor’s loss is higher, they will be able to pursue damages or compensation in excess of the standard severance payment.Employers should amend their retention policies for personnel documentation held after 1 January; and review information stored prior to this date which is more than 10 years old to ensure it is processed in accordance with the General Data Protection Regulation and Polish data protection law. Businesses should also amend HR policies and practices in relation to trade union participation to include contractors and other non-employees. UK 1.   Courts uphold worker status in two out of three gig economy casesOn 20 December 2018, the Court of Appeal (Uber B.V. & Ors v Aslam & Farrer [2018] EWCA Civ 2748) upheld a Tribunal decision that Uber drivers in London are ‘workers’ not independent contractors entitled to holiday pay and underpaid wages.In UK law a ‘worker’ means an individual who undertakes to do or perform personally any work or services for another party to the contract who is not a client or customer of any profession or business undertaking carried on by the individual.While Uber argued that it is only an intermediary connecting drivers with riders, the Court of Appeal cited the “practical reality of the relationships” as favouring 'worker' status. The decision pointed out that although drivers have the right to turn down rides if the Uber app is on, Uber can disconnect them if they turn down offers too frequently. That left drivers under a “positive obligation” to be available for work while the app is on.The Court of Appeal decision was not unanimous, with Lord Justice Underhill dissenting and arguing drivers should be treated as working only from when they accept a trip and that Uber’s arrangements with drivers did not essentially differ from those applied by other taxi and minicab companies.The case now goes back to the Employment Tribunal for a decision on the drivers’ claims for unpaid holiday pay and wages, however, the Court also gave leave to appeal to the Supreme Court.On 14 November 2018, the Employment Appeal Tribunal (Addison Lee Ltd v Lange UKEAT/0037/18/BA) had also upheld a Tribunal decision that drivers working for Addison Lee were ‘workers’. Addison Lee operate slightly differently from Uber as drivers log in to the system via a handheld device when they are ready to work. The system allocates them work according to their location and once assigned a job, they are expected to accept it or give an acceptable reason for refusing. There may be sanctions for refusals. Addison Lee did not promise any specific amount of work, but a driver would need to work 25-30 hours per week to pay the fixed costs of hiring an Addison Lee branded vehicle from a group company.The contract between drivers and Addison Lee stated the driver was an independent contractor and there was no obligation on either side to provide work or to do any work. However, the EAT held the Tribunal was entitled to find that drivers, when logged on, were undertaking to accept the jobs they were sent.However, in a claim by Deliveroo riders (R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee and Roofoods Ltd t/a Deliveroo [2018] EWHC 3342 (Admin)) for the right to engage in collective bargaining, the High Court refused to overturn the decision of the Central Arbitration Committee (CAC) that the riders were self-employed and not ‘workers’. Deliveroo was successful because the CAC found that Deliveroo riders had a genuine right to use a substitute to perform deliveries - a right which was inherently incompatible with an obligation to provide personal service.These cases do not provide a precedent for gig workers generally but provide a useful illustration of the different elements that courts will examine when considering employment status. The essential elements of ‘worker’ status are that there is an obligation to perform work personally and that the individual is not performing the work for a client or customer of their own profession or business. In the case of Uber and Addison Lee drivers the courts found they had an obligation to perform work personally and were not doing so in business on their own account; whereas Deliveroo riders did not have to perform the work themselves and could substitute another rider to perform the assignment. 2.   Government announces ‘Good Work’ upgrade of worker’s rightsThe UK government announced in December 2018 that it will introduce the biggest package of workplace reforms for over twenty years. The Business Secretary Greg Clark pledged to take forward 51 of the 53 recommendations made by Matthew Taylor in his Good Work report published in July 2017 following his review of modern working practices.New legislation, yet to be published, will: repeal the Swedish derogation – which provides an exemption from equal pay for agency workers; extend the right to a day one written statement of rights to workers, going further to include detail on rights such as eligibility for sick leave and pay and details of other types of paid leave, such as maternity and paternity leave; quadruple maximum employment tribunal fines for employers who are demonstrated to have shown malice, spite or gross oversight from £5,000 to £20,000; extend the holiday pay reference period from 12 to 52 weeks, ensuring those in seasonal or atypical roles get the paid time off they are entitled to; lower the threshold required for employees to request Information and Consultation arrangements from 10% to 2% of the workforce; and reform Statutory Sick Pay. The government is also committing to legislate to improve the clarity of the employment status tests to reflect the reality of the modern working relationships. They intend to publish detailed proposals to align the employment status framework for employment rights and payment of tax.The so-called Swedish Derogation, described in the announcement as a “loophole”, is a provision which was included in the Agency Workers Directive 2008 at the request of the Swedish government. It permitted EU member states to provide employers with an exemption from agency workers’ right to receive the same pay as if they were directly employed by the hirer, provided they are given an indefinite employment contract that could not be terminated unless the worker had received 50% of their normal pay between assignments for at least 4 weeks.As part of the reforms, the Government is also responding to the Labour Market Strategy set out by Sir David Metcalf, the Director of Labour Market Enforcement, with detailed plans to tackle exploitation of low paid workers, including: bringing forward proposals in early 2019 for a single enforcement body to ensure vulnerable workers are better protected; extend the remit of the Employment Agency Standards (EAS) Inspectorate to cover umbrella companies; creating new powers to impose penalties for employers who breach employment agency legislation like non-payment of wages; consulting on Salaried Hours Work and Salary Sacrifice Schemes to ensure National Minimum Wage rules do not inadvertently penalise employers; bringing forward legislation to enforce holiday pay for vulnerable workers; and consulting on the recommendations on non-compliance in supply chains. One reform that will not proceed is the ban on zero-hours contracts or contracts for services that the unions had argued for. This reflects the views expressed by Matthew Taylor in his review into Modern Working Practices that: banning zero hours contracts in their totality would negatively impact more people than it helped; that the flexibility of ‘gig working’ is not incompatible with ensuring atypical workers have access to employment and social security protections; and that platform-based working offers welcome opportunities for genuine two-way flexibility and can provide opportunities for those who may not be able to work in more conventional ways. The government announcement did not give any timescale for issuing legislation to introduce the reforms set out in their Good Work plan and it is likely that many of these proposals will require further consultation on the detail of draft legislation before they can become law. However, UK employers and staffing firms should plan for the signposted reforms, such as the abolition of the Swedish Derogation and consider other employment arrangements for assigned agency workers. 3.   Statutory pay rates increase from April 2019From April 2019, the statutory pay rates for maternity (SMP), paternity (SPP), adoption (SAP) and shared parental (SShPP) leave and maternity allowance (MA) will increase from £145.18 to £148.68 per week.The statutory sick pay (SSP) rate will increase from £92.05 to £94.25 per week.The weekly lower earnings limit, that applies to National Insurance contributions, below which employees are not entitled to SMP, SPP, SAP, SShPP and SSP (but remain entitled to MA), is set to rise from £116 to £118.Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action. […]

  • Middle East and Africa Legal Update Q4 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem across the Middle East & Africa in Q4 2018:Saudi Arabia New health and safety obligations for employers United Arab Emirates New anti-corruption laws have extraterritorial effect  UAE permits increased foreign investment in certain sectors Equal opportunities for persons with special needs.  Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action.To download a pdf copy of this update click below: Middle East & Africa_Legal Update Q4 2018_20190110 - You do not have permission to view this object. Saudi Arabia New health and safety obligations for employersUnder Resolution Number 161238 dated 10/8/1439 H, which came into effect on 1 July 2018, an employer must have a written policy published in Arabic and the commonly spoken language at the establishment, if different. The Resolution applies to employers with fifty employees or more and categorises employers, according to their industry activity, into low, medium and high-risk environments.The policy should specify the employer's expectations of employees and its priorities, identify general processes, liabilities on the employer and individual employees as well as specifying the various roles of key employees in implementing the policy, and reporting duties for occupational accidents and diseases.The policy should take account of the size, nature and activities of the business and must be reviewed at least every two years. It must be signed by the CEO, Director General or senior management and be accessible by all staff (whether in hard copy or electronically and through an intranet). The policy should inform all employees on training obligations and opportunities, presentations and notices required.The Resolution expressly states that an employer will be liable to employees, as well as contractors and third parties, such as visitors and passers-by, in terms of health and safety issues on its premises.  An employer must provide sufficient resources for discharging its obligations regarding health and safety, in respect of HR, finance, technology, infrastructure and equipment.Further details of the obligations placed on all employers, and those in medium and high-risk environments, are provided by Clyde & Co. United Arab Emirates 1.  New anti-corruption laws have extraterritorial effectThe UAE has amended its Penal Code (Federal Law No. 3 of 1987) to bring anti-corruption legislation into line with other jurisdictions.  Federal Decree No. 24 of 2018 has broadened the scope of the law to include foreign public servants and employees of international organisations outside the UAE who seek to receive benefits in return for committing or refraining from doing an act that is mistakenly believed or alleged to fall within their job obligations.The new law imposes a sentence of imprisonment for a maximum term of five years for certain acts of bribery or corruption. In particular, it will be an offence for a person to promise a public servant or a person assigned to a public service, a foreign public servant or an employee of an international organization, an undue gift or benefit or grant directly or indirectly, for their own or another’s benefit in return for that servant performing an act or refraining from acting in breach of the obligations or duties assigned to him by virtue of his office.Transparency International ranks the UAE at 21 out of 180 countries on its Corruption Perceptions Index 2017, which captures levels of corruption in the public sector. The UAE ranks ahead of France at 23 and several other European countries, while 19 of 21 Arab states score below 50. This amendment to the Penal Code further enhances the UAE’s crackdown on corruption. 2.  UAE permits increased foreign investment in certain sectorsIn September 2017, the UAE government amended the UAE Commercial Companies Law (UAE Federal Law No. 2 of 2015) to allow the UAE Cabinet the flexibility to permit increased levels of foreign ownership in certain companies and sectors of the economy. The Commercial Companies Law stipulated that foreigners are only permitted to own a maximum of 49% of equity in onshore corporate vehicles in the UAE.The UAE Federal Decree-Law No. 19 of 2018 (the “FDI Law”) which is effective since 30 October 2018, introduces the framework under which the UAE Cabinet will exercise its powers to permit increased levels of foreign ownership, and sets out details of the process which foreign investors will be required to follow in order to apply to own more than 49% of the shares in the capital of companies operating in certain sectors of the economy.The FDI Law does not contain details as to the sectors of the economy in which foreign investors will be permitted increased ownership - the so-called 'positive list' – but when a sector of the economy is added to the 'positive list', the UAE Cabinet may mandate that certain requirements are satisfied before greater levels of foreign investment will be permitted. These may include: mandating the level of foreign ownership permitted in the relevant sector (which could be 100%, but could also be less than 100%); placing restrictions or requirements in respect of the type of legal entity which may carry on business in the relevant sector; applying minimum capital requirements; imposing Emiratisation requirements; and allowing greater levels of foreign ownership than is currently the case in specific Emirates (not across the UAE). However, the FDI Law does specify the sectors in which increased foreign investment is not permitted, known as the 'negative list'. The UAE Cabinet may add sectors to, or remove sectors from, the 'negative list' but those that are currently listed in the FDI Law 'negative list' are: Oil exploration and production Investigation, security, military (including manufacturing of military weapons, explosives, dress, and equipment) Banking and financing activities Insurance Pilgrimage and Umrah services, providing employment and recruitment services for staff and servants Water and electricity provision Fishing and related services Post, telecommunication and other audio-visual services Road and air transport Printing and publishing Commercial agency Medical retail (including pharmacies) Blood banks, quarantines and venom/poison banks Two government bodies have been established under the FDI Law to ensure the proper administration and implementation of the FDI Law: Foreign Direct Investment Unit (the "Investment Unit") and Foreign Direct Investment Committee (the "Committee"). The Committee shall be primarily responsible for studying and submitting recommendations to the UAE Cabinet on the composition of the positive and negative lists. The Committee will also be responsible for providing recommendations to the UAE Cabinet on the approval of license applications of Foreign Direct Investment Projects not yet on the positive list. The Investment Unit’s role is to suggest and implement (after receiving approval from the UAE Cabinet) foreign direct investment policies in the UAE and monitor and evaluate the performance of such permitted foreign direct investment.For further details, Clyde & Co will publish further updates on the changing foreign direct investment landscape in the UAE. 3.  Equal opportunities for persons with special needsOn 29 July 2018, the UAE Cabinet passed Resolution No. 43 of 2018 protecting individuals with special needs (“people with determination”) and enabling them to access equal opportunities in the labour market. It sets out a framework of the obligations placed on employers and what it refers to as “concerned authorities” which are defined as “governmental authorities, including federal and local ones, private sector organizations and facilities, including foreign institutions that operate in the country or their branches, associations, charities, clubs and profitable and non-profitable organizations”.A person with determination is defined as “any person with permanent or temporary disability or deficiency totally or partially in his/ her physical, sensory, mental, communicative, educational or psychological abilities to the extent that it reduces the possibility of meeting his/ her normal requirements in comparison of the circumstances of their peers who are non-disabled persons”.Discrimination is defined as “any distinction, exclusion or restriction based on disability which aims to or resulting in weakening, impairing or nullifying the equal recognition, enjoyment or exercise of any of the rights granted under the legislation in force in the State”.Concerned authorities, including private sector employers, are put under a special obligation to ensure that persons with determination are provided equal employment opportunities; that they are not discriminated against with respect to work benefits, the employment process or recruitment, retention and promotion; and that they receive equal salaries to their peers engaged in the same role.In addition, concerned authorities must adopt procedures or mechanisms for attracting people with determination into their organisation, i.e. take into account the needs of people with determination (e.g. adjusting recruitment processes such as interviews and vocational tests, advertising in different mediums, only stipulating core competencies required for the role in the advertisement or job description). They must also ensure their employees with special needs have safe and healthy working conditions that are free of any abuse or harassment; that they have reasonable accommodation and are provided with appropriate rehabilitation and training.There is also a duty under the Resolution to make adjustments to the work environment in order to accommodate people with determination in the following areas: Work environment (e.g. adjusting physical spaces and providing equipment or training); Work organisation and flexibility e.g. considering flexible working; Performance Assessment and Management; and Career development and learning opportunities. Employers are restricted in their ability to terminate employment due to an employee's disability unless he has reached retirement age, or he is no longer able to work according to the assessment of a medical committee.These measures are designed to ensure that the UAE offers employees a fair and competitive labour market.Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action. […]

  • Legal Calendar 2019: Asia Pacific

    Key Findings In Australia, Victoria’s labour hire licensing scheme comes into force in 2019; and large businesses will have an obligation to report on modern slavery risks in their supply chain. India is expected to move forward with two significant pieces of legislation during 2019: a national licensing scheme for staffing firms, and the Personal Data Protection Bill. Hong Kong, Japan, Singapore and South Korea all expand the scope of their employment rights and protections. Further information on most of the developments in this report can be found in the Asia Pacific Legal Updates published quarterly. To download the report, click below: Legal Calendar 2019_APAC_20190122 - You do not have permission to view this object. […]

  • MSP RFP Template

    IntroductionA well written RFP contains specific CW program information and clearly states your future goals and requirements. It should encourage bidders to respond to each question in a way that they clearly state and quantify the added value they will deliver (together with any dependencies), making it easier to evaluate on an “apples- to-apples” basis. You should dissuade respondents from simply reaching into their answer library for “canned” answers that are irrelevant or difficult to evaluate. You want to let providers propose creative, relevant, and cost-effective solutions by focusing on the end, not only on the means. This document will help will help ensure you get there.To download the full document, please click below: MSP RFP Template 20190113 - You do not have permission to view this object. […]

  • Asia Pacific Legal Update Q4 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem across the Asia Pacific region in Q4 2018:Australia Casual employment under the spotlight Gig economy rider is an employee of Foodora Federal modern slavery law passed New rights for employees to domestic violence leave Changes to Modern Awards reviews and flexible working rights Victoria extends long service leave to casuals Hong Kong Statutory paternity leave extended India New licensing system for contract staffing firms Draft Data Protection Bill Guidelines for setting up creche facilities published Japan Overtime regulations passed Singapore Expansion of Employment Act rights Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action.To download a pdf copy of this update click below: Asia Pacific Legal Update Q4 2018_20190110 - You do not have permission to view this object. Australia 1.  Casual employment under the spotlightIn our Q3 2018 Legal Update we reported that in October 2018, Modern Awards were amended to ensure that casual employees who have worked at least 12 months (6 months in the case of some Awards) on a regular and systematic basis are now entitled to elect to be employed as a part-time or full-time employee, rather than a casual employee.  The Fair Work Act does not precisely define what a casual employee is. But a recent Federal Court decision, WorkPac Pty Ltd v Skene [2018] FCAFC 131 has stated that a casual employee will only be one whose employment retains the “essence of casualness”.WorkPac operated a labour-hire business and employed Mr Skene as a dump-truck operator from 17 April 2010 to 17 July 2010 and then again from 20 July 2010 to 17 April 2014 at coal mining operations in central Queensland. His job involved 12-hour shifts, on “a 7 days on, 7 days off” roster arrangement. He was given a 12-month roster in advance, worked rotating night and day shifts, and his contract provided that he had a one-hour notice of termination. It also provided that his employment was on an "assignment by assignment" basis, that he was engaged for each "discrete period of employment [being for]… a Casual or Fixed Term hourly basis" and was paid a loaded rate which was said to include casual loading (although this was not clear from his payslips).Mr Skene claimed that he was a permanent full-time employee of WorkPac and that he was entitled to annual leave and consequential entitlements, or payment in lieu of annual leave upon his employment coming to an end. WorkPac contended that Mr Skene was a casual employee and not entitled to annual leave.The Court stated that the “absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work” is the essence of casualness. “Whether the requisite firm advance commitment to continuing and indefinite work (subject to rights of termination) is absent or present must be objectively assessed including by reference to the surrounding circumstances created by both the contractual terms and the regulatory regime (including the FW Act, awards and enterprise agreements) applicable to the employment…. The key indicators of an absence of the requisite firm advance commitment will be irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work of the employee in question”.Following this decision, the Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) (Amending Regulation) took effect from 18 December 2018. These amend the Fair Work Regulations 2009 (Cth) and apply where an employee has mistakenly been classified as a casual employee and is claiming NES entitlements, even though they have received a casual loading in lieu of those entitlements. The purpose is to ensure “double-dipping” or being paid twice for the same entitlement, does not occur.Employers who engage casual employees on an ongoing basis with regular shifts cannot necessarily rely upon the fact that the employee has been categorised and paid as a casual. It is important for those employers to take advice on the specific circumstances relating to their workers in the light of this case. 2.  Gig economy rider is an employee of FoodoraIn a recent decision, Klooger v Foodora Australia Pty Ltd [2018] FWC 6836 the Fair Work Commission found that a former fast food delivery rider was an employee of Foodora, not an independent contractor as they had claimed. Foodora was ordered to pay the rider AUD 15,559 (USD 11,000) in compensation.Joshua Klooger, worked as a delivery rider for Foodora under a contract described as an “independent contractor agreement”. At times between March 2016 and his dismissal in March 2018 he also performed the work of a Driver Captain, for which he was paid an additional AUD100 (USD 71.65) per week. This involved helping other riders arrange to swap shifts and dealing with small administrative issues.The test of whether a worker is an employee, or an independent contractor, involves the consideration of multiple factors, with no single element of the relationship being decisive. In October 2017, Foodora introduced an arrangement known as the 'Batching System' which established a fortnightly assessment process and as a result all delivery riders were ranked into one of six batches, with batch ranking determined by individual key performance indicators (KPI's). These included the total number of hours worked, the number of deliveries performed per hour and the number of shifts performed on Friday, Saturday or Sunday evenings. The Commissioner found that riders would have to perform a certain number of deliveries during any particular shift and to work a minimum number of shifts on Friday, Saturday and Sunday nights in order to maintain a high batch rating. Consequently, Klooger could not genuinely pick and choose when and where to work. For this reason, the batching system meant that Foodora exercised a level of control that might generally be present in an employment relationship. In addition, Foodora required riders to wear branded outfits and the riders were not involved in the financial transaction between the restaurants and the customers.The Commissioner concluded from the overall picture, that the rider was not carrying on a trade or business of his own, and instead Mr Klooger was integrated into Foodora's business and was not carrying on an independent operation.This case is only significant for the fact that Foodora, similar to other gig economy companies, considered itself a technology company. However, the degree of control exerted over the riders was an important factor in this case and illustrates the fact that if the reality does not reflect the label placed on the relationship by the parties then it will not stand up to scrutiny. 3.  Federal modern slavery law passedThe Modern Slavery Bill 2018 (Cth) has passed both Houses of Parliament and now awaits Royal Assent to be enacted. It will require entities in Australia which have an annual consolidated revenue of more than AUD 100 million (USD 71.7m) to report annually on the risks of modern slavery in their operations and supply chains and describe the actions taken to address those risks. Entities in New South Wales (“NSW”) already have an obligation to report under similar legislation passed earlier this year if they have a turnover of AUD 50 million (USD 35.8m).It is likely that the first reporting year will be 1 July 2019-30 June 2020 and that reports will encompass auditing the supply chain and reporting on slavery, servitude, child and forced labour, human trafficking, debt bondage, slavery like practices, forced marriage and deceptive recruiting for labour or services.The Bill will create a publicly available Modern Slavery Statements Register to be kept by the Minister of Home Affairs to promote transparency and allow consumers and other businesses to make informed decisions about products in particular supply chains. The Minister will have the power to make written requests to any business that has failed to give a modern slavery statement to provide an explanation as to why, or to undertake specific remedial action to address the non-compliance.However, under the federal bill companies will not face any penalties for shirking responsibility or false reporting. Instead, civil penalties will be considered in a review of the scheme which will occur three years after the federal law comes into place. That contrasts with the scheme in NSW where there are significant penalties of up to a maximum of AUD 1.1 million (USD 78m).Organisations should consider if the legislation applies to them and develop policies and procedures in line with the law to enable reporting once the timeline is confirmed. Affected companies should start auditing their supply chains and collecting data ahead of the reporting deadlines. 4.  New rights for employees to domestic violence leaveA new right for all employees covered by the Fair Work Act 2009 (Cth) to take up to five days’ unpaid family and domestic violence leave each year has been enshrined in the National Employment Standards. The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (Cth) passed on 6 December 2018 introduced the right which will be available in full at the commencement of each 12-month period, rather than accruing through the year, and will not accumulate year to year.All employees, including full-time, part-time and casual, will be able to access the leave in full without being pro-rated, as occurs with certain other entitlements. Employees can take the leave if they are experiencing family and domestic violence, or where they need to deal with the impact of family and domestic violence and it is impractical to do so outside of work hours. This could include making arrangements for their own safety, or for the safety of a close relative or where the employee needs to attend a court hearing. 5.  Changes to Modern Awards reviews and flexible working rightsThe Fair Work Commission (FWC) will no longer be required to conduct four-yearly reviews of modern awards with the passage of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 on 5 December 2018. Instead, awards will be reviewed on an “as-needs basis”. Awards will also still be able to be amended or varied upon application at any time provided the variation is necessary to meet the objectives of the modern award. This follows concerns expressed by unions and employer groups of the strain the reviews have placed on the resources of representative bodies and the time it has taken for the current four-yearly review process by the FWC. The current four yearly review commenced on 1 January 2014 and is yet to be completed despite the fact that the next four-yearly review cycle was set to commence as soon as practicable after 1 January 2018.As of 1 December 2018, a model term will be included in all Modern Awards strengthening the right for specific employees to request a change in their working arrangements already set out in section 65 of the Fair Work Act 2009 (Cth). Parents (including by adoption), carers, persons with disabilities, persons aged 55 or older, and those experiencing domestic violence are entitled to make a request to their employer. On receipt, the employer must discuss the request with the employee and genuinely try to reach agreement. The model term will now also require employers to discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances. Their discussion must have regard to the needs of the employee; the consequences for the employee if the changes are not made; and any reasonable business grounds for refusing the request.Requests may only be refused on “reasonable business grounds” and the employer must provide a written response within 21 days of receiving the request, stating whether they grant or refuse the request, including any reasons for refusal.Now, if the employer refuses the request, the written response required under the Fair Work Act must include details of the reasons for the refusal, including the business ground or grounds for the refusal and how they apply. The response must also state whether or not there are any changes in working arrangements that can be offered instead and set those out. If the employer agrees to the request, the written response must set out the agreed changes.Employers should ensure they update their policies and have procedures in place to comply with the 21-day timescale for responding to requests for flexible working arrangements. 6.  Victoria extends long service leave to casualsOn 1 November 2018 amendments to Victoria’s long service leave (LSL) laws are taking effect as a result of the Long Service Leave Act 2018 (2018 Act).LSL is a statutory entitlement, allowing employees to take a period of paid leave after completing significant service with their employer. It is intended to reward the employee for loyalty to the company and has been a mandatory entitlement throughout Australia for many years.  The entitlement varies from state to state.The new Victorian laws impose additional rights and responsibilities on both employers and employees and will apply to casual, seasonal and fixed-term employees who have a continuous employment arrangement with their employers. Continuous employment means that there are no breaks in employment of more than 12 weeks, except in cases of some paid and unpaid leave, for example unpaid parental leave of up to 52 weeks will be counted as continuous service.Employees are entitled to request LSL after 7 years of continuous service with one employer, a change from 10 years previously. In future, any accrued and unpaid LSL must be paid out upon termination of employment if the employee has been employed for at least 7 years. Employees can request to take LSL in one-day increments. Previously, employees were required to take leave in longer blocks of time.  The employer must grant such requests as soon as practicable unless there are reasonable grounds for refusal.Further details are provided by Littler. Hong Kong Statutory paternity leave extended On 25 October 2018, the Legislative Council passed the Employment (Amendment) Bill 2018 (the "Bill") increasing the statutory paternity leave from three days to five days. The Bill makes no amendment in respect of other aspects of the statutory paternity leave. The daily rate of statutory paternity leave pay remains at 80 percent of the daily average wages of the employee.An eligible male employee will be entitled to take up to five days of paternity leave in respect of a child born on or after the commencement date of the Amendment Ordinance. To be entitled to paternity leave pay, the employee must have been continuously employed for at least 40 weeks prior to the date of the paternity leave, subject to the employee submitting satisfactory documentation to the employer. Paternity leave is in addition to rest days, holidays and annual leave to which an employee is entitled.An eligible male employee is entitled to take paternity leave any time from four weeks before the expected date of delivery to 10 weeks following the actual date of delivery. All five paternity leave days may be taken at once or separately.The Amendment Ordinance will commence on a date to be appointed by the Secretary of Labour & Welfare and is expected to come into force at the beginning of next year. India 1. New licensing system for contract staffing firmsThe Indian labour ministry has proposed amendments to the Contract Labour Regulation and Abolition (CLRA) Act, to introduce a mandatory national licensing scheme for all staffing firms, regardless of size.The new framework is set out in the draft Code on Occupational Safety Health and Working Conditions which amalgamates 13 existing laws including the Factories Act, Mines Act, Contract Labour (Regulation and Abolition) Act, and Building and Other Construction Workers Act. The government extended the period of public consultation on the draft code until 31 August 2018.This is broadly welcomed by the staffing sector and users of contract labour because at present contract staffing companies have to procure a licence for each and every job where they provide labour to a principal employer. This process which has led to the majority of the staffing market being in the unorganised sector depriving workers of social security benefits and employment rights. Out of 480 million workers in the country, just 10% are in the organised sector so there are opportunities for staffing firms to improve the quality of work. However, Suchita Dutta of the Indian Staffing Federation has said that the term “contractor” needs clarity to differentiate between job order contracts, and manpower supply contracts. “At a time when freelancing and gig economy are new buzzwords across sectors, the ministry must adopt the words to clearly differentiate the role of contract staffing companies from contractors who drive project execution,” said Dutta.Licences will be issued for 3 years when the scheme comes into force. Using contract labour supplied by an unlicensed provider will deem those workers to be permanent employees of the hirer with all the rights and entitlements that brings. 2.  Draft Data Protection BillThe Indian government has also been consulting the public on a draft Personal Data Protection Bill which borrows heavily from GDPR to introduce new rights for individuals and obligations on businesses. The only major difference to the GDPR is the requirement to keep a copy of the data in India – a practice known as “localisation” which has also been introduced in Russia and China. The draft currently states that a copy of all personal data of Indian citizens should be stored on servers located in India. In addition, "critical personal data", to be determined by central government, should be stored exclusively on Indian servers. The European Union (EU) has provided a submission on the draft listing seven detailed reservations about the draft bill.The Bill will apply to every organisation, and the government, that processes personal data in India, as well as any processing by the State, Indian companies or Indian citizens. It will also apply to entities that are not based in India but that offer goods or services in India, or in case they profile individuals in India.The Bill carries a penalty of INR 5000 (USD 70) per day of violation amounting up to a maximum of INR 1 million (USD 14,241). For violations of the Bill, and depending on the severity of said violations, the yet to be established data protection authority (DPAI) can award fines ranging from 2-4% of the company’s global revenue or INR 50-150 million (USD 700,000-2,000,000 million), whichever is higher. These sanctions percentile ranges are identical to the ones that the GDPR introduced earlier in the year.The Bill also introduces some criminal offences with sentences of up to 5 years depending on the violation in question.The Ministry of Electronics & Information Technology is currently considering the responses to the consultation which closed on 30 September. It is expected that the Ministry will soon finalise the Bill and once enacted, organisations will have 12 months to ensure compliance with the Bill. 3.  Guidelines for setting up creche facilities publishedIn 2017, the Maternity Benefit (Amendment) Act 2017 (2017 Amendment) made it mandatory for all establishment employing 50 or more employees to set up a creche. However, there was a lack of clarity on the technical aspects and related requirements concerning the setting up of a creche and the facilities to be provided.In the absence of any further legislative detail, the Ministry of Women and Child Development, Government of India has issued National Minimum Guidelines for setting up and running Creches under the Maternity Benefit Act, 2017 (Creche Guidelines) in its office memorandum dated 2 November 2018.The Creche Guidelines stipulate the following: There should be one creche for every 30 (thirty) children aged six months to six years of all employees including temporary, daily wage, consultant and contractual workers. The creche facility should be located at the workplace or within 500 meters from the premises of the establishment. There should be one person employed in the creche, along with one helper, for every 10 children under the age of three years and for every 20 children aged three up to six years.  The Creche Guidelines specify that the preferred age of creche staff shall be between 20 to 40 years. Further, the workers are also required to undergo training and their appointments would be made on assessment of their skills, knowledge and attitude. Such training may be provided by different organizations who specialise in providing training of childcare workers. The Creche Guidelines provide that the creche opening hours be in line with working hours or shifts in an establishment. Every establishment must adopt a child protection policy. The Creche Guidelines provide for a model child protection policy which can be adopted by establishments. The objective of this policy is to prevent child abuse in any form at establishment's workplace and within its operating hours. Such policy must provide for a complaints committee constituted by the establishment to receive complaints, conduct formal enquiries and recommend appropriate action for redressal and punishment. The Creche Guidelines also provide for norms and standards relating to the creche environment, creche equipment, materials, safety and health practices, nutrition, hygiene and sanitation practices etc. The Creche Guidelines provide a curriculum depending on the age group of children in creche.  The Creche Guidelines also outline activities to monitor the development of children in the creche depending on the age of children. In order to monitor and supervise the functioning of the creche, a creche monitoring committee is required to be set up by the establishment. This would consist of 3 to 4 parents, creche worker, creche supervisor and human resource/ administrative officer. There are still some aspects of the requirement to establish a creche that lack clarity, such as the ability to outsource the provision of the creche facilities and the ability to charge for such facilities. But in the absence of any statutory guidelines these provide employers with a template to follow. Failure to comply with the Creche Guidelines does not carry a penalty under the Maternity Benefit Act, but if these Creche Guidelines are enacted in State or national regulations then penalties could apply. Japan Overtime regulations passedEarlier this year, the Labour Standards Act was amended to stipulate that the upper limit for overtime shall be, in principle, 45 hours a month and 360 hours a year. The higher rate (at least 50%) of payment for overtime exceeding 60 hours a month will also apply to small and medium-sized enterprises. The amendments will come into effect on 1 April 2019.In special circumstances, the upper limit will be: 720 hours a year; less than 100 hours a month (including holiday work); and an average of 80 hours a month (including holiday work). For certain employees – including motor vehicle drivers, construction workers and doctors – there is a grace period before the regulation must be applied. For employees working in R&D of new technology, products or services, the application of this regulation shall be excluded, provided that employees receive face-to-face consultation with a doctor. There is an exemption for those with annual incomes of more than JPY 10.75 million (USD 95,600), including roles such as product developers, financial traders, consultants and researchers.It should be noted that Japan also passed laws requiring equal pay for equal work for part-time, fixed-term and dispatched workers which come into force in 2020. These should be borne in mind when setting pay and working conditions for such workers. PwC Legal provides further details of the reforms. Singapore Expansion of Employment Act rightsOn 20 November 2018, the Employment (Amendment) Act 2018 was passed introducing changes to the Employment Act (EA) and Employment Claims Act (ECA) to take effect from 1 April 2019. The amendments to the Employment Act extend rights under the Act to managers and executives (“PMET’s”) who receive a monthly salary of more than SGD 4,500 (USD 3,300). From 1 April 2019, they will be entitled to core protections such as, holiday and sick leave entitlements, redress on wrongful dismissal, contract termination rights, and salary payment rights.Employers will be required to give PMETs a written record of their key employment terms under section 95A of the Act, which includes a description of the employee's main duties and responsibilities, daily working hours, number of working days per week and rest days, salary period, basic rate of pay, fixed allowance and deductions during each salary period (if any), any other salary-related component, leave entitlement, medical benefits and notice period for dismissal or termination (as the case may be). PMET’s will also have the right to be treated as affected employees and their contracts will automatically transfer under a transfer of the undertaking they are working for.In addition, the Act increases the threshold cap of those employees treated as “vulnerable non-workman” to SGD 2600 (USD 1918) from SGD 2500 (USD 1845) meaning more will be entitled to the enhanced protections under Part IV of the Act (such as protection in relation to hours of work, rest days, overtime payments and annual wage supplements),   and to have their due salaries paid in priority to the employer's other debtors who have obtained a judgment or decree against the employer. The definition of dismissal is also expanded to include the resignation of an employee if the employee can show that he did not resign voluntarily but was forced to do so because of any conduct or omission of the employer.Further details of the amendments are available here.Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action. […]

  • Blockchain and the Staffing Industry

    This report is an update on our initial report on this topic ‘The Impact of Blockchain in Talent Acquisition’ published on December 13, 2017. Blockchain is a distributed, decentralized peer-to-peer ledger system. A ledger system is a database of transactions; thus, a blockchain can be thought of as a decentralized database where anyone has write access and no one maintains centralized control. It can be used to create many kinds of decentralized applications and has implications for any industry that is transactional in nature, relies on intermediaries, or is reliant on data (that is, virtually all industries, including staffing). There are thousands of blockchain initiatives currently being developed and we have identified 40 we believe are relevant to the staffing industry. These projects appear to fall into one of five broad categories: credentialing/identity management, payrolling, freelance/on-demand marketplaces, job boards/candidate sourcing and community/governance/DAOs (decentralized autonomous organizations). The rise of blockchain has created incredible (and growing) demand for blockchain developers. These individuals are well paid, in short supply and are more likely to be willing to work in an alternative work arrangement; a cocktail of attributes that should appeal to staffing firms interested in supplying such talent. Should demand continue, staffing firms that build blockchain practices early should find themselves positioned for success. Many industries have created their own collaborative consortia to explore and create blockchain applications. Though the staffing industry seems conspicuously absent from any such activity, such consortia may currently be operating ‘under the radar’. Though blockchain has much promise, most initiatives are still very early in development, use cases are few, and the majority of initiatives related to the staffing industry do not even have a fully developed product. Because blockchain apps provide a mechanism for easy and unregulated funding, any initiative should be approached with an extra dose of scrutiny.  The full report can be downloaded below:  Blockchain and the Staffing Industry January 2019 Update - You do not have permission to view this object. […]