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  • Temp Use of Human Cloud Staffing

    Key Findings: Temporary worker use of human cloud employment low but increasing. Altogether, 12.6% of temporary workers receive at least some income from either consumer-related or business-related human cloud services. That usage may seem low, but it’s up from 9.2% in 2017, and further growth is likely inasmuch as awareness is sure to increase and the percent considering using these services is larger than those using them currently. Consumer-related human cloud services. The vast majority of temporary workers are either not yet familiar (36%) or are familiar but not interested (48%) with consumer-related human cloud services (e.g. Lyft,, etc.). However, 8% are currently earning at least some income from them, and 9% are considering using such services within two years. Among those using them, median share of income earned was 10%. Business-related human cloud services. Likewise, the vast majority of temporary workers are either not yet familiar (57%) or are familiar but not interested (27%) with business-related human cloud services (e.g. Upwork, Guru, etc.). Eight percent are currently earning at least some income from them, and another 8% are considering using them within two years. Unlike consumer-related services, however, those currently earning income from business-related services are doing so in a big way -- the median share of total income was 50%. Definition of human cloud: An emerging set of work intermediation models that enable work arrangements of various kinds to be established and completed (including payment of workers) entirely through a digital/online platform. Well-known names include Uber, Lyft, Upwork, Freelancer, 99 Designs, and Fiverr. To access the complete report, please select the link below: Temporary Worker Survey 2018 Are temporary workers turning to human cloud services for employment 20180419 - You do not have permission to view this object. […]

  • US Staffing Forecast April 2018

    Key Findings Primarily due to an improving economy, we project growth in the US temporary staffing market to accelerate from 3% in 2017 to 4% in 2018, reaching a market size of $132 billion in revenue next year. Though the more favorable economic conditions are expected to continue through 2019, we project growth to decelerate back to 3%, as the expansion matures and increases on top of record levels become more challenging. One headwind to temporary staffing market growth has been a scarcity of labor supply, noted in a variety of occupations from construction to highly skilled IT roles. Consequently, we are at last starting to see broadly (but not universally) reported signs of bill rate increases. Further bill rate increases could support revenue growth and help offset any declines in volume due to labor scarcity. Regarding the total US staffing market (comprised of temporary staffing, direct hire and retained search), we project 4% revenue growth in 2018 and a 3% rise in 2019, surpassing the $150 billion milestone next year. Our 2018 growth projection of 4% for the temporary staffing market belies the difference in trends among the various occupational segments, from declines in office/clerical to double-digit growth in locum tenens. On pages 6-19, we provide our projections and commentary for each occupational segment of temporary staffing and for the direct hire and retained search markets. Performance not only varies by occupational segment, but also by location. To provide some local color, on pages 20-23, we summarize employment trends reported by each district of the US Federal Reserve. On pages 24 and 25 are our detailed tables of market size and growth. For the first time, we provide direct hire market size and growth estimates by major occupational segment. The full report can be downloaded by clicking the link below: US Staffing Industry Forecast_ 20180418 - You do not have permission to view this object. […]

  • US Pay Rate Rangefinder 2018

    The US Pay Rate Rangefinder was created to help staffing firms, workforce solutions providers, and employers benchmark their pay rates for occupations against local, state and national wage data. The tool contains data on 819 detailed occupations across 422 metropolitan areas, all made available via three interactive dashboards. This tool is based on data from the 2017 Occupational Employment Statistics (OES) program administered by the U.S. Bureau of Labor Statistics (BLS).  Note: this is a very large file and may take several minutes to download on a slow Internet connection. To download the Pay Rate Rangefinder, please click the following link: US Pay Rate Rangefinder 20180418 - You do not have permission to view this object. […]

  • Latin America Legal Update Q1 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem in Latin America in Q1 2018: Chile New Requirement to Employ Disabled Persons Mexico Proposals to Lift Restrictions on Outsourcing Peru Gender Pay Prohibition in ForceLegal 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: LatinAmerica_LegalUpdate_Q1_20180418 - You do not have permission to view this object. Chile New Requirement to Employ Disabled PersonsEffective April 1, 2018, Law No. 21,015 entered into force to amend the law in relation to the inclusion of disabled persons in the workforce.The main amendments introduced by the Law are: In companies with 100 or more employees, at least 1% of its total workforce must be comprised of disabled employees or people who are entitled to a disability pension under any applicable social security system. This specific obligation is also applicable to government agencies, state-owned companies and other public institutions listed in the law. Companies that for justified reasons are unable to comply with such obligation, may alternatively execute contracts for the provision of services or make monetary donations, in accordance with the Law and Decrees 64 and 65 issued by the Ministry of Labor and Social Security setting out the regulations for compliance with the Law. The remuneration agreed to in the employment contracts executed between a company and a mentally disabled individual may not be lower than the legal minimum wage. The hiring obligation is being phased in for companies with less than 200 employees up to April 1, 2019. Transition provisions also allow employers to comply with the law by the alternative means of a services contract or monetary donation, without justified reasons, until April 1, 2020 for companies employing 200 or more employees, and until April 1, 2021 for those employing between 100 and 199 employees.Employers with 100 or more employees should take advice on the extent of their obligations and how to comply during the transitional phase. Mexico Proposals to Lift Restrictions on OutsourcingIn December 2017, a bill for constitutional labor reform was submitted to the Senate and the House of Representatives for approval. If approved, the rules currently applicable at Federal level to outsourcing arrangements will alter labor, social security and fiscal liabilities for employers that use outsourced labor to control overheads. The aim is to bring greater legal certainty to workers and the contracting parties.Currently, three requirements must be met under the subcontracting regime. If any of them are not met, the customer will be considered the employer for all legal effects, including social security obligations. The work that is outsourced: Must not cover the entirety of the activities performed in the workplace. Must be justified by its specialized nature. Cannot include the same or similar work to the work performed by workers hired directly by the customer. The proposals allow unlimited outsourcing and remove the provisions that regulate the practice. Employers will still be bound by other employment rules, but there will be no restrictions on subcontracting work if the proposals are enacted as drafted. The labor reform bill makes a number of other proposals to amend employment laws, particularly in relation to notice of dismissal and the approval of collective agreements.Employers and staffing firms should keep a close eye on the legislative progress of these proposals. Peru Gender Pay Prohibition in ForceEffective Dec. 28, 2017, Law 30709 prohibiting pay discrimination between men and women came into force. Employers are required to categorize jobs according to objective criteria based on the tasks to be performed, the skills required and the job profile. Workers must be informed about any performance evaluation that relates to their wages.Employers have until the end of 2018 to implement the measures, and the Labor Authority will start monitoring compliance from Jan. 1, 2019.Employers should categorize roles and develop objective salary policies to comply with the law by the end of this year. […]

  • Gender Pay Gap Data

    There has been a great deal of focus recently on the United Kingdom’s Gender Pay Gap.This citation looks at some of the European, OECD and other resources you can examine to understand how the UK and other nations compare and what actions can and should be taken.European Union DataDistinguishing the gender pay gap from equal pay is important. Equal pay issues arise where men are paid differently to women for the same work (or work of equal value). Surprisingly only 26% of Europeans are aware of the legal guarantee of equal pay for equal work in their country.In comparison, the gender pay gap is defined by the EU as the relative difference in the average gross earnings of women and men within the economy as a whole1,calculated for enterprises with 10 or more employees.In 2016, women's gross hourly earnings were on average 16.2 % below those of men in the European Union (EU-28) and 16.3% in the euro area (EA-19). Across the Member States, the gender pay gap varied by 20 percentage points, ranging from 5.2 % in Romania to 25.3 % in Estonia (EU Data Sheet 1). The pay gap for the UK is fourth from the top at 21%, which is a much more significant number than the Gender Pay Reporting for Large Companies data, we have covered previously, might suggest. The smallest gender pay gaps are often due to what are known as ‘selection effects’, whereby “only more highly-qualified female workers tend to remain in the labour force”. A high pay gap is usually characteristic of a highly segregated labour market, meaning that women are more concentrated in a restricted number of sectors and/or professions (e.g. Czech Republic, Estonia and Finland), or in which a significant proportion of women work part-time (e.g. Germany and Austria).The gender pay gap is generally much lower for new labour market entrants and tends to widen with age. (Eu Data Sheet 3). The gap for those under 25 in the UK is 4.5% but 26.9% for those between 55-64. However, those differences over age groups can have different patterns across the countries In Bulgaria, for example, the gap is 6.9% for those under 25 but only 6.2% for those aged between 55-64.Within the business economy (EU Data Sheet 4), the highest gender pay gap was recorded in Estonia (25.6 %) and the lowest in Romania (7.0 %). For Section N - Administrative and support service activities (EU Data/Sheet 4a), which includes N78 - Employment activities, the gender pay gap favours women in Romania (-27.8%) and Bulgaria (-24.6%). In the other 25 countries that report the gap is between 1.8% (Poland) and 22.8% (Portugal)Data by working time (EU Data/Sheet 2) and the public/private split are also available in the spreadsheet below.In 2017 the European Commission adopted an Action Plan to tackle the gender pay gap from all possible angles. This prioritises the following eight areas for action: Improving the application of the equal pay principle Combating segregation in occupations and sectors Breaking the ceiling: initiatives to combat vertical segregation Tackling the care penalty Better valorising women's skills, efforts and responsibilities Fighting the fog: unveiling inequalities and stereotypes Alerting and informing about the gender pay gap Lending hands: enhancing partnerships to tackle the gender pay gap OECD DataFor the OECD the gender pay gap is defined as the difference between the median earnings of men and women as a proportion of the median earnings based where possible on earnings for full-timeGender pay gaps vary considerably across the OECD (OECD Data / Sheet 1). In 2015 (or latest available year), the gender gap in median earnings ranged from as low as 3.3% in Belgium to as high as 37.2% in Korea. The gap in most OECD countries somewhere between 10% and 20% and the OECD-28 average 14.5% compared to 16.2% for the EU. The data from the OECD is useful as it provides a historical overview, which shows that between 2002 and 2015, the gender gap in median earnings decreased in 23 of the 28 OECD countries. Improvements were largest in Austria, Belgium, the United Kingdom, and especially Luxembourg, where the gap fell by more than ten percentage points. However, some other countries saw increases over the same period. Both Latvia and Estonia, for example, saw the gender pay gap increase by at least two percentage points. Gains have also been smaller (or non-existent) in more recent years, with most countries seeing only small decreases since 2010, and several (e.g. Mexico, Poland and Portugal) seeing increases.Gaps tend to be slightly wider among highly educated men and women than among their less educated counterparts. On average across OECD countries, full-time-employed highly-educated women (i.e. those with at least tertiary level education) earn almost 26% less than similarly-educated full-time-employed men, while in comparison the gap among low-skilled full-time workers (i.e. those without upper secondary education) stands at a little over 22%. Differences in the pay gap across levels of education are largest in Chile, Hungary and particularly Ireland – where the pay gap among full-time-employed highly-educated men and women is about 16 percentage points higher than the gap for low-skilled workers.Other SourcesData from the IMD World Competitiveness Center shows how much a country has improved its Gender Inequality from 2008 to 2015 in the vertical axis and the most recent Gender Inequality level in the horizontal axis. By taking the mid-points of the range for the two axes, we can identify four areas of interest. The northern quadrants capture the countries that have empowered women the most in the last eight years, while the western quadrants show those that are least unequal. The two countries that exhibited the most impressive improvement are that of Estonia and Kazakhstan. Conversely, the countries in the south-east quadrant are those where there is a lot of room for improvement. Many countries and institutions realise that the best results are achieved when the most capable people occupy positions related to business, government or research irrespective of gender. The European Institute for Gender Equality - Gender Equality Index is a comprehensive measure for assessing the state of the art and monitoring progress in gender equality across the EU over time. The Index measures gender gaps and takes into account the context and different levels of achievement of Member States within a range of relevant policy areas. The work includes data on  the FTE employment rate, duration of working life, segregation and quality of work and ability to take one hour or two off during working hours to take care of personal or family matters; plus data on money, knowledge, time, power and health. Additionally, it gives insights into violence against women and intersecting inequalities. It shows the different outcomes of EU and national policies for women and men and supports the development and implementation of evidence-based policy making in the area of gender equality. According to the World Economic Forum’s (WEC) annual 2017 Global Gender Gap Report, the average pay for women in 2017 was $12,000, compared with $21,000 for men. The report highlights a small widening of the gap this year, within the context of a decade of improvements. But the story about earnings is different and much less positive. There hasn’t been any real improvement over the last ten years, and things are moving in the wrong direction, as shown in the graph below. The reason according to the WEC is also because women are more likely to work in industries with lower average pay, rather than high-income areas such as finance or technology which are traditionally dominated by men. They are more likely to undertake part-time work, due to commitments to care for either children, elderly parents, or both. And they are less likely to be in highly paid senior positions, often because they have chosen to take a career break while having children. Currently, only 22% of individuals holding senior managerial positions are women.Much is being done to try to close the gap. Two-thirds of OECD countries have introduced new policies on pay equality since 2013, while the UK, Australia, Japan, Germany and Sweden are among a handful of countries that require some employers to publish calculations every year showing the gender pay gap. While such legislation is much needed, the Forum’s report calls for broader changes too, in everything from education and parental rights to institutional and policy inertia.The 2018 Women in Tech Index focuses on 41 countries in the OECD and EU and offers comparable data relating to both the tech industry and the wage gap. The data covers areas such as Gender in the Overall Economy: factors such as the percentage of women in work and the overall gender income parity. Women in Tech: as measured by the number of women in IT positions compared to the overall numbers of people in tech. Tech Wage Gap: difference in gender wage gap between women working in the tech industry and the overall workforce at large. Portugal, The United States and Latvia highlighted as the top three nations that have taken positive steps towards gender parity in the technology field in terms of fairer wages. Conversely Poland, Lithuania and Greece hold the bottom three placesAccording to Emma Tracey, Co-Founder at Honeypot who created the Index: “With the proportion of female tech workers remaining under 30% across the board, we hope that this study will enrich the conversation concerning equality in this industry and inspire more women to seek out opportunities in tech.”To read more about the EU data, click here and download the EU statistics below: EU Data - You do not have permission to view this object. To read more about the OECD data, click here and download the OECD statistics below: OECD Data - You do not have permission to view this object. Notes1. Here defined as industry, construction and services except public administration and defence and compulsory social security: NACE Rev. 2 Sections B to S with the exception of Section O. […]

  • Middle East and Africa Legal Update Q1 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem in the Middle East & Africa in Q1 2018:Bahrain Flexible Work Permits Allow Work Without a Sponsor  Kuwait  New Rules on Annual Leave and Pension Contributions   Oman Temporary Freeze on Work Permits   Saudi Arabia Expansion of Prohibited Sectors for Foreign Employees   Labour Inspections Likely to Increase After Privatisation   United Arab Emirates DIFC Proposes New Employment Law    New Right to Request Teleworking   Skilled Workers Allowed Contracts with Multiple Employers   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: MiddleEastAfrica_LegalUpdate_Q1_20180418 - You do not have permission to view this object. Bahrain Flexible Work Permits Allow Work Without a SponsorBahrain has recently introduced a flexi-work permit for expatriates, allowing eligible expatriates to work and live in Bahrain without being sponsored for a work/residence permit by a local employer. Eligible expatriates can now work in any job with any number of employers on a full or part-time basis. Eligible expatriates are those who have either had their employment terminated and cannot find a sponsor, or those whose work permits have expired without renewal. Under the scheme, they will be able to continue living and working in Bahrain without the need for a sponsor/employer. Flexi-Work permits must be renewed every 2 years and cost BHD 449 (USD 1,186) per application/renewal plus a monthly fee of BHD 30 (USD 79). Kuwait New Rules on Annual Leave and Pension ContributionsPreviously, the law was silent on whether weekends, public holidays, and sick leave days could be counted as part of an employee's 30 days of annual leave. Law No. 85 of 2017 has amended two articles of Law No. 6 of 2010 concerning labour in the private sector, to stipulate that weekends, public holidays, and sick leave days shall no longer be counted as part of annual holidays. An employee's entitlement to this annual leave is dependent on the employee having completed six months' service with the employer. The amending law also now states that upon termination, an employee is entitled to a full indemnity without deductions for the contributions the employer made towards the Public Institution for Social Security (PIFSS). Previously, some employers deducted the amount that they had contributed towards social security from their employees' end-of-service payment. The amending law clarifies that this practice is no longer allowed.Employers should check their current arrangements in relation to annual leave calculation and termination payments and ensure they comply with the amended law. Oman Temporary Freeze on Work PermitsOn 28 January 2018, the Ministry of Manpower (‘MOM’) issued a temporary 6-month freeze on the issuance of work permits and visas to expatriates in 87 job positions. During this 6-month period, expatriates who are already employed with companies in Oman and carrying out a job on the MOM list may continue to work as long as their work permit and visa are valid. However, if expatriates need to renew their work permits or visas during the 6-month freeze, they will be unable to do so and will therefore have to find alternate work in a different job or will have to leave the country.The restricted roles on the MOM list include computer engineer, programmer and computer maintenance; building supervisor, construction and electrical technician; and various roles within the airline, insurance and accounting sectors. Sales and marketing roles, HR and certain jobs in the medical sector are also included.This only applies to private sector establishments, and includes a specific exemption for enterprises whose owners are also full-time managers, and are registered with both the Public Authority for Small and Medium Enterprises Development (Riyada), and the Public Authority for Social Insurance (PASI).One of the objectives is to reduce unemployment levels of Omani nationals so there may be further similar measures in future. Employers should review the visa arrangements for their workforce and make contingency plans for employees who may be affected. Saudi Arabia 1. Expansion of Prohibited Sectors for Foreign EmployeesThe high proportion of expatriates in the private sector has led Saudi Arabia to introduce a number of changes to the employment regime to encourage the employment of Saudi nationals over expatriates in the private sector workforce.The Ministry of Labour and Social Development (‘MOL’) introduced the Nitaqat system in 2011 to encourage the employment of Saudi nationals in the private sector in Saudi Arabia. It operates by classifying employers into six categories – Platinum, Green (High, Medium and Low), Yellow and Red – depending on various factors such as the size and activity of the company, as well as the percentage of Saudi nationals in the workforce compared to expatriate employees. Further, under the Nitaqat system, certain professions are reserved for Saudi nationals. As it currently stands, 18 roles are restricted to Saudi nationals only.The MOL has now introduced a prohibition on expatriates from working in retail in 12 additional sectors. The prohibition will be phased in from September 2018 onwards. To make private sector jobs more appealing to Saudi nationals the private sector workweek, which is currently 48 hours with a paid rest day on Friday, will be reduced to 40 hours for Saudised jobs and industries.This will impact employers who currently employ expatriate labour in one of these additional roles. For these employers, it is important to check the details of when the prohibition will take effect and ensure there are contingency plans for employing Saudi nationals to replace those employees. 2. Labour Inspections Likely to Increase After PrivatisationIn light of new austerity measures and tightened spending, the Ministry of Labour and Social Development (MOL) is handing over inspection responsibilities to the private sector. The MOL intends this new measure to increase fee collections and improve supervision.The Shoura Council recently approved new fines for violations of the Labour law. Most breaches will incur fines of SAR 10,000 (USD 2665) but a fine of SAR 15,000 (USD 3997) will be applied for health and safety offences and SAR 2000 (USD 533) for an employer who retains an employee’s passport, residency permit or medical insurance card without the employee’s consent.Companies doing business in Saudi Arabia may expect more frequent inspections, and should ensure that all operations are in compliance with the Saudi Labour Law, Saudisation requirements, and/or any additional MOL directives. United Arab Emirates   1. DIFC Proposes New Employment LawEarlier this year, the Dubai International Financial Centre Authority issued a public consultation on proposals to replace DIFC Law No. 4 of 2005, as amended, with DIFC Law No.6 of 2018 in relation to employment rights for short-term and part-time employees, and any individual determined by a court to have "a sufficiently close connection to the DIFC for it to be appropriate to deal with any right, remedy, privilege, debt or obligation of that individual".The Dubai International Financial Centre (DIFC) operates within a unique legal and regulatory framework entrenched in the UAE’s constitution and the country’s laws, both at Federal and Dubai levels, permitting DIFC to have its own civil and commercial legal framework, inclusive of financial services regulation and a courts system modelled closely on international standards and principles of common law, tailored to the region's needs.The proposals clarify benefits including family friendly rights, end of service gratuity and compensation for constructive dismissal. There is also a proposal to reduce statutory sick pay so that employees are entitled to 100% of their wages for the first 10 working days’ absence; 50% for the following 20 days’ absence; with absence in the following 30 days being unpaid. The provisions on anti-discrimination are to be expanded to include discrimination based on age, pregnancy and maternity and belief as well as protection from unwanted conduct and victimization.There is also a proposal to introduce the concept of secondment of employees, although further clarity is to be provided by secondary employment legislation.Employers operating within the DIFC should prepare for changes to the law and, once enacted, make any necessary changes to their employment contracts and policies to comply with the new law. Staffing firms should pay particular attention to any change in the law relating to secondment to ensure any existing arrangements are compliant. 2. New Right to Request TeleworkingTo create new job opportunities and encourage a better work-life balance for UAE nationals living in remote areas, the UAE Ministry of Human Resources and Emiratisation (MHRE) recently published Ministerial Resolution No. 787 of 2017, concerning remote working or “teleworking”.Resolution No. 787 gives eligible UAE nationals the right to apply for teleworking (i.e. to work remotely). The employee must be employed by a company registered with the MHRE; have six months' service if employed on a full-time basis; or have at least one year's service if employed on a part-time basis.Employers must respond to an application for teleworking within 20 working days, if necessary communicating the reason(s) for refusal. Where an application for teleworking is rejected, an employee may re-submit the same application on a further two occasions in the same year. When evaluating an application for teleworking employers are encouraged to consider whether: the proposed teleworking arrangement is compatible with the nature of the employee's work and duties; the proposed teleworking arrangement is compatible with the employer's operational requirements; the proposed teleworking arrangement improves the employer's service and/or would result in additional cost for the employer; and the employee has the necessary skill-level to undertake his role remotely. If an employee's application for teleworking is accepted and the proposed teleworking arrangement is implemented, a teleworking agreement must be entered into by the employer and the employee setting out the terms of the teleworking arrangement. The teleworking agreement should be attached to the employee's contract of employment. Their employment will continue to be governed by UAE Federal Labour Law No. 8 of 1980, as amended.Employers will need to update their HR handbook with details of the new right and inform employees of how to apply. Remote working brings a number of challenges but the arrangement must be viewed objectively in line with the Resolution. 3. Skilled Workers Allowed Contracts with Multiple EmployersThe UAE Ministry of Human Resources and Emiratisation has recently implemented a decision, permitting skilled workers to take up employment contracts with two or more different employers. The decision applies to both Emiratis and expatriates alike.Companies may now recruit skilled employees, who are already employed elsewhere, under a part-time contract. A “skilled employee” is classified as a holder of a university degree or higher qualification or those who have successfully obtained a two or three-year diploma in any field. University degree holders must be employed in roles that require a high degree of scientific technical and administrative skills; while diploma holders employed in technical jobs must use mental, scientific, technical, practical and supervisory skills.Employees with multiple jobs may not work more than eight hours per day or forty-eight hours total per week and are obliged to receive at least one rest day per week. The employer cannot require the employee to work more than the agreed hours outlined in the contract unless they obtain written consent from the employee.The original employer cannot prevent the employee from taking a part-time job, even if the employee will be working in a similar facility to the current job, (provided the employee has Ministry approval). As such the employer may not even be able to rely on a non-competition clause. In fact, the employee doesn't even require the old or new employer’s consent, to take up a part-time job whilst still working for the original employer. Furthermore, the original employer is still liable for all the fees levied by the Ministry when contracting with an employee and is further liable for all legally required benefits, such as health insurance and end of service benefits.The part-time contract cannot be turned into a full-time contract. Should the employer and employee wish to convert the contract into a full-time contract then they will have to wait for the initial contract to come to an end or alternatively cancel the initial contract.This measure is to encourage growth within the UAE by offering more flexible work options. It remains to be seen how much take up of part-time work there will be and how the arrangements will work in practice. […]

  • Europe Legal Update Q1 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem in Europe in Q1 2018:European Union Agreement on Equal Pay for Posted Temporary Workers  Working Time Includes Travel for Work and Restricted On-Call Availability Pregnant Worker is Not Protected if Employer is Unaware GDPR Comes into Force on 25 May 2018 Belgium Ban on Public Sector Agency Work Lifted Modifications to Hours of Work and Work Week Germany Coalition Proposes Changes to Fixed Term Contracts and Review of the AÜG  Difficulties in Terminating Temporary Agency Workers IrelandBill to Reform Employment ContractsNetherlandsEnforcement of ZZP Tax Law is Postponed Until 1 January 2020PolandManagers Can Be Self-EmployedTurkeyRemoval of Annual Employee Consent for OvertimeUK AWR Entitles Agency Workers to Equal Terms Not Just Pay 12.07% Calculation for Holiday Pay May Amount to Underpayment  Working Time Law Requires a Single Uninterrupted Rest Break Employer Vicariously Liable for Employee Data Breach National Minimum Wage and Statutory Payment Rates Rise From April 2018   Basic Criminal Conviction Checks Now Available to All  Government Consultation on Agency Work in Response to Taylor Review    ACAS Publishes Guidance for Agency Workers.  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_LegalUpdate_Q1_20180418 - You do not have permission to view this object. European Union   1. Agreement on Equal Pay for Posted Temporary Workers Members of the European Parliament and EU Ministers announced on 1 March 2018 they had reached agreement on the revision of the Posting of Workers Directive. The Posting of Workers Directive has been in place since 1996. It was the first Directive to regulate the provision of services across the single market by establishing a minimum set of social guarantees in the interest of workers. A posted worker is a worker who is sent by their employer temporarily to carry out a service in another EU member state. The revision of the Directive follows calls to close the legal loopholes which have allowed unfair competition and exploitation of workers.Under the agreement, posted workers are to receive equal pay for equal work, and all of the host country’s rules on remuneration, set by law or certain collective agreements, would apply. Representative regional or sectoral collective agreements could also be applied. The agreement also stated that travel, board and accommodation costs should be paid by the employer and not deducted from workers’ salaries. Employers will have to ensure that the accommodation conditions for posted workers are decent, and in line with national rules.Furthermore, the duration of the posting has been set at 12 months, with a possible extension of 6 months. After that time-limit, the worker will still be able to stay in the member state where he or she is posted, but all of the host country’s labour rules will start to apply.The EU average duration of a posting is less than 4 months. In 2016, there were 2.3 million posted workers in the EU. Posting increased by 69% between 2010 and 2016.Once the agreement is adopted, Member states will have a 2-year transition period to introduce the new rules into national law and will have to apply these rules from the end of this period. 2. Working Time Includes Travel for Work and Restricted On-Call AvailabilityTwo recent cases at European level have clarified the scope of what constitutes “working time” in the EU Working Time Directive (2003/88/EC).In November 2017, the European Free Trade Association (EFTA) Court delivered an advisory opinion in Torbjørn Selstad Thue v the Norwegian Government (E-19/16) to the Norwegian Supreme Court stating that travel time ordered by an employer is classified as working time in relation to Article 2 of the EU Working Time Directive. The EFTA Court is equivalent to the European Court of Justice (ECJ), making the decision relevant for countries in both the European Union and the European Economic Community. It follows a similar decision of the ECJ in the case of Federacion de Servicios Privados del Sindicato Comisiones Obreras (CC.OO) v Tyco Integrated Security SL and another (C-266/14) which we reported in our Q3 2015 Europe Legal Update.The Norwegian case concerned a policeman that worked in a rural police station in Norway. Between 2005 and 2014, he was also a member of a special response unit and his duties included armed response and escort assignments throughout the district. The driving time between the policeman's home and three of the assignments varied between one and three hours. Most of these journeys were approved by the Norwegian government as constituting travel time, entitling the employee to either time off or a monetary payment, but not as working time. The employee challenged this classification before the Norwegian courts and argued that under the Norwegian Working Environment Act travel time is classified as working time.The court stated that to be working time a worker must be regarded as being at the disposal of his or her employer,  and placed in a situation in which he or she is legally obliged to obey the instructions of and carry out activities for that employer. In addition, the court added that the intensity of the work performed by the worker and his or her output are not part of the criteria of 'working time' under the definition provided by the Working Time Directive.According to Homble Olsby Advokatfirma AS, if the Norwegian Supreme Court follows the EFTA ruling at its hearing in May 2018, this will have a significant effect on the calculation of working time in Norway. For many workers, travelling outside of normal working hours does not constitute working time, which leads to longer working hours than agreed in employment contracts. As a result, this judgment may affect the remuneration strategies of Norwegian employers.In the second case, the ECJ has confirmed the opinion of the Advocate General in the Belgian case of Ville de Nivelles v Matzak  (C-518/15), which we reported in Q3 2017 Europe Legal Update. Mr. Matzak, a retained firefighter working in Belgium had to be on call for evenings and weekends for one week in four. While on-call he had to be contactable and, when called, he had to report to the fire station within eight minutes.The obligation for the firefighters to remain physically present at the place determined by the employer (their homes) and the "geographical and temporal constraints" resulting from the requirement to reach his place of work within eight minutes, limited the opportunities which the firefighters had to devote themselves to their personal and social interests. The ECJ held that the proximity of the worker to the workplace at a place determined by the employer (even if it is the worker's home) is a key factor. The situation of the firefighters in this case could be distinguished from that of a worker who, during his on-call duty, must simply be at his employer's disposal by being contactable.Employers should review the restrictions placed on staff required to be on-call to determine whether they should be paid during these periods. 3. Pregnant Worker is Not Protected if Employer is UnawareLast year, we reported on the controversial opinion of the Advocate General in the Spanish case of Porras Guisado v Bankia SA and others (C-103/16), that a pregnant worker is protected against dismissal even if the employer was unaware of her pregnancy. The European Pregnant Workers Directive 92/85/EEC (PWD) prohibits the dismissal of pregnant women from the start of their pregnancy until the end of their maternity leave, save in exceptional circumstances.In giving its judgment on the case, the ECJ has declined to agree with the AG on this point, but has confirmed that a dismissal as a result of a collective dismissal for reasons unconnected with the pregnancy, may amount to “exceptional circumstances” justifying the dismissal. However, the employer must give substantiated grounds for the dismissal in writing and the dismissal must be permitted under any relevant national legislation and/or practice.The ECJ highlights that the PWD does not require an employer to provide exceptional reasons for a dismissal in the case of a pregnant employee. But there is an obligation to base the dismissal on objective grounds which have nothing to do with the pregnancy.The ECJ was also asked to clarify whether the PWD obliges member states to provide in national legislation a priority status for pregnant employees in relation to being either retained or reassigned to another post. The ECJ stated that the PWD does not establish any obligation in this regard, although it does not prevent national legislation from establishing a more protective regulation which could include this kind of measure to guarantee a higher protection for pregnant workers, workers who have recently given birth and workers who are breastfeeding.In the event there is a need to make collective redundancies, employers should have objective grounds for making dismissals and select employees on those grounds. If there are pregnant workers amongst those employees they must put those grounds in writing and be clear that the justification for the dismissals is for reasons other than the pregnancy. If national law requires employers to give pregnant workers priority over other employees in terms of redeployment, the employer must give due consideration to the possibility of retaining or reassigning the pregnant employee. 4. GDPR Comes into Force on 25 May 2018On 25 May 2018, the “world’s highest standard” for data protection comes into force. Europe’s General Data Protection Regulation (GDPR) will set the gold standard in allowing individuals within the European Union to control their personal data. It introduces obligations for organisations that merely process data on behalf of others and its scope extends to those businesses that though not physically present within the EU, offer goods and services to EU citizens.For further information see our report “Implementing GDPR: A Guide”. Belgium   1. Ban on Public Sector Agency Work LiftedOn 2 March 2018, the Council of Ministers approved Royal Decrees permitting both federal administrations and autonomous public companies to use temporary agency workers. Federgon, the federation of HR service providers that represents, among others, the temporary employment sector, reported that the sector had been lobbying for several years for the possibility of deploying temporary employees to government services, at all levels.As far as practical implementation is concerned, Federgon has said it will provide its members, in cooperation with a working group of government experts, with extensive information to ensure the use of temporary agency workers by public sector bodies is a success.The Agency Workers Directive limits the prohibitions and restrictions that EU member states may impose on the use of temporary agency work to: measures that operate for the protection of temporary agency workers; prohibitions and restrictions that are necessary to ensure that the labour market functions properly; and, ensuring that abuses are prevented. It is difficult to see how the ban on the use of agency workers in the public sector in Belgium could be justified on those grounds. 2. Modifications to Hours of Work and Work WeekFrom 1 April 2018, the length of the working week will be shortened by one hour from 43 hours to 42 hours. The decrease of one hour of work, shall occur on a day of the week pre-determined by the employer, according to its needs, and taking into account the employees' requests and needs. An employee who is required to perform work during the decreased hour on the shortened workday, due to the employer's business needs, shall be entitled to receive overtime payment in return for such hour. In accordance with the shortening of the work week, the hourly salary rate shall be calculated on the basis of 182 hours of work per month (rather than the current calculation, which is based on 186 monthly hours).In addition, further changes to the law have allowed employers to require employees to perform night work, for one week every two weeks rather than every three weeks prior to the amendment; and extended the limit on overtime from 15 hours per week to 16 hours.Further details of these changes are given by Herzog Fox & Neeman. Germany   1. Coalition Proposes Changes to Fixed Term Contracts and Review of the AÜGOn 7 February 2018, the Social Democrats (SPD) and the Christian Democrats (CDU) agreed on a coalition agreement in which they plan important projects for the next four years. These include some significant proposals for changes to employment law.The most important section is for the regulation of fixed-term contracts. A contract limited by time is only possible if this is provided by law. The agreement states that a term limit without material reason should only be possible for a maximum of 18 months (instead of 24 months). In this period, the term can be extended only once, instead of the existing three times. In addition, fixed-term contracts which are renewed for a reason, such as an ongoing project (“chain contracts”) should be limited to a maximum duration of 5 years.Temporary work, through temporary work agencies, should be included in the calculation of the maximum employment duration. A new fixed-term employment relationship with the same employer, after the fixed-term employment duration has been reached, will be possible only after a waiting period of three years. No waiting period for fixed-term employment based on an objective reason exists under the current law.It is also proposed that the number of non-permanent employees in companies with more than 75 employees is to be limited to 2.5%. Each fixed-term contract for no objective reason exceeding this percentage will be deemed a contract of indefinite duration.The Temporary Employment Act (“Arbeitnehmerüberlassungsgesetz” AÜG) which was introduced last year, is to be reviewed in 2020 as to its effectiveness in regulating temporary agency work.CMS provides further information on the Grand Coalition’s plans for labour law. These proposals will not necessarily become law in exactly this form over the next four years but are a clear indication of the changes that the Coalition would like to make. Employers who will be affected if these proposals are passed into law should monitor legal developments and take advice from lawyers with expertise in German law. 2. Difficulties in Terminating Temporary Agency WorkersDLA Piper has reported a recent case in a German Labour Court (Mönchengladbach, 20th March 2018, docket number 1 Ca 2686/17) that highlights the difficulties encountered by temporary work agencies in terminating the employment of a temporary worker.Agency workers are employees of the temporary work agency and enjoy the same protection against dismissal as other employees. In this case, the agency relied on one single employer for work assignments for its temporary workers. When the employer found it had no work for the agency worker in question for a period of three months the agency terminated his contract. Under the Temporary Employment Act (“Arbeitnehmerüberlassungsgesetz” AÜG) agency workers must be paid between assignments and their contract cannot be synchronized to terminate at the end of an assignment. The Court declared the termination as invalid.The fact that the agency could not redeploy the worker with another employer placed the agency in a very difficult position. Staffing agencies operating in Germany should take legal advice on their obligations towards their temporary workers and the options for terminating the employment of workers when no work is available. Ireland Bill to Reform Employment ContractsOn 7 December 2017, the Minister for Employment Affairs and Social Protection published the Employment (Miscellaneous) Provisions Bill, 2017 (the “Bill”). The Bill seeks to provide the following statutory protections for employees working in Ireland: A written statement of the key terms of employment to be provided within 5 days of the start of employment. This should include the name and address of the employer, the expected duration of the employment, the method of calculating pay and the number of hours they are reasonably expected to work per day or per week. Failure to provide the five key terms of employment will expose employers to possible criminal prosecution which could result in a twelve-month prison sentence and/or a fine for the employer. Employers will be prohibited from stating in an employee’s contract that the number of hours for which an employee must make themselves available for work is zero hours. An employee can request that the employer pay them in a category of “banded hours” as set out in the Bill, if the hours which an employee is working do not reflect the hours of work stated in the employee’s contract. If the employer agrees to the employee’s request then the employee shall work the average hours which fall within the “banded hours” for a period of not less than 18 months. For example, if an employee works on average 15 hours a week and their contract provides for 10 hours of work per week, the employee could be placed in the band which corresponds to 11 hours to 24 hours of work and, therefore, must be assigned at least 11 hours of work per week. The Bill is currently before Dáil Éireann, in the Second Stage and may be amended before it is enacted. Employers will need to ensure they are acting in compliance with the Bill, once enacted, particularly in relation to new employees and employees who may be currently on zero hours contracts. Netherlands Enforcement of ZZP Tax Law is Postponed Until 1 January 2020The government recently announced that it has decided to postpone the enforcement of the DBA Act for freelancers (ZZP’ers) and their clients until 1 January 2020. The previous government had postponed enforcement of the Deregulation of Labour Relations Act (‘Wet Deregulering Beoordeling Arbeidsrelaties’ “the DBA Act”) until July 1, 2018.The previous Cabinet replaced the VAR declaration of employment relationship with the DBA Act. The aim was to combat bogus self-employment and make clients responsible for the correct payment of premiums and taxes. According to the DBA Act, freelancers and their clients must specify in an agreement that the relationship is that of a client and a contractor, rather than a subordinate and an employer.Following the removal of the VAR declaration, many clients abandoned the use of contractors because they were afraid that the Tax Authorities would audit them more strictly, that their assignments would not be approved and that they would be liable for fines and additional charges.On 1 January 2020, the current government wants to replace the DBA Act for freelance workers with a "web module" for clients. In the meantime, the Cabinet will consult with freelancers, the business community and other interest groups on how to implement this. In 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: Self-employed workers who (i) work for a low hourly fee (EUR 15 – EUR 18 per hour) and (ii) work on a contract for at least 3 months or whose work consists of regular business activities, will always have an employment agreement with their client/employer. Self-employed workers who (i) work for a fee of EUR 75 per hour or more and (ii) work on a contract for less than 1 year, or whose work does not consist of regular business activities, can choose to ‘opt out’. This means that the relationship between the self-employed worker and the client will not be considered an employment agreement and no wage taxes and social security premiums will have to be paid. Self-employed workers to which the above does not apply, can request for a client statement (‘opdrachtgeversverklaring’) from the Tax Authorities in advance by filling out a web-based form. The client statement will provide organizations that engage self-employed workers the assurance that they will not be liable for wage tax and social security contributions. Another proposal in the Coalition Agreement is that the period after which successive fixed-term contracts automatically convert into an indefinite term contract will be extended from two years to three. This would revert to the legal position as it was before the law was changed on 1 July 2015.As all these intended changes of law still need to go through the consultation and legislative process, it is not clear to what extent the proposals in the Coalition Agreement will become law. Employers and contractors should monitor developments closely and take advice as necessary. Poland Managers Can Be Self-EmployedIn many countries, the fact that an individual performs a management role within a business would call into question that person’s status as an independent contractor. However, the position in Poland is somewhat different.Article 20 of the Polish Constitution sets out a principle of freedom for business activity, which can be limited only by statute. The regulations on business activity do not prevent the execution of management contracts by self-employed persons and the performance of a business activity does not exclude the performance of a service agreement. Further, the contractual provisions that limit the freedom of a self-employed manager's decisions do not undermine the actual performance of the relevant business activity.This was the conclusion of the Polish Supreme Court in a case (I UK 116/16) brought by the Social Security Agency. The manager had been hired by a limited liability company under a management contract to oversee part of the company's business within his business activity (i.e. as a self-employed person). The manager was added to the register of entrepreneurs shortly before the execution of his management contract. He did not seek any other clients and performed only that one contract as his business activity. The management contract provided for certain limitations regarding the manager's freedom of business activity i.e. company consent was required to conduct business activity for another entity or to change the scope of his business activities, the company could provide instructions to the manager and the company had to perform certain fiscal obligations on the manager's behalf.The Supreme Court ruled that a management contract can be executed within a manager's business activity and therefore constitutes a legal basis for calculating social security contributions. However, a clear distinction must be made between management and non-management board members. A management board member acts on behalf of a company and his or her actions can have a direct impact on a company's rights and obligations. On the contrary, a non-management board member manager acts in his or her own name and on his or her own account.Similar conclusions were confirmed in another Supreme Court decision (I UK 247/16). Further, a management contract can be viewed as a due diligence agreement (similar to a mandate agreement). Hence, a company (mandator) can provide some instructions or guidelines to a manager (contractor).Sołtysiński Kawecki & Szlęzak warns that although these decisions establish the principle that a manager can be engaged on a self-employed contract, the Social Security Agency may still claim that social security contributions should be paid on the basis of employment rather than self-employment. Turkey Removal of Annual Employee Consent for OvertimeOvertime in Turkey is regulated by Article 41 of the Labour Act (4857) and the Regulation on Overtime. According to the Labour Act, employee consent is required for overtime and the Regulation on Overtime obliged employers to obtain the written consent of employees for working overtime at the beginning of each year. The Regulation on overtime was amended in 2017 to remove the requirement for annual consent and providing instead that consent may be obtained by employers during the execution of an employment contract or the employment relationship, if and when required. Another notable change is that employees who no longer wish to work overtime can withdraw their consent by providing 30 days' written notice to their employer.If consent has not been obtained during the process of concluding an employment contract then employers must obtain the consent of an employee prior to requiring them to work overtime. UK   1. AWR Entitles Agency Workers to Equal Terms Not Just PayThe Agency Workers Regulations 2010 (AWR) require agency workers to receive the “same basic working and employment conditions” as if they had been recruited directly, once they have worked in the same role with a hirer for 12 weeks. This entitlement includes terms and conditions relating to pay, duration of working time, night work, rest periods, rest breaks and annual leave.A recent case has clarified that agency workers are entitled to the same treatment in respect of each of these terms and conditions, regardless of whether their overall compensation results in an enhanced rate of pay when compared with a permanent employee of the hirer.In Kocur v (1) Angard Staffing Solutions Ltd (2) Royal Mail Group Ltd (EAT/0181/17) Angard Staffing Solutions Ltd (Angard) supplied temporary workers, including Mr. Kocur, to Royal Mail where they worked alongside Royal Mail’s permanent employees. After working at Royal Mail for over 12 weeks, Mr. Kocur was entitled to the same basic working and employment conditions as he would have received had he been recruited directly by Royal Mail. Although employees and agency workers had a one-hour rest break each day employees were paid for the full hour, but agency workers were only paid for 30 minutes of it. Employees received 30.5 days’ annual leave, but agency workers only received 28 days. However, the agency workers received an enhanced hourly rate of pay of £10.50 per hour compared with the £9.60 Royal Mail employees were paid. Mr. Kocur was dissatisfied with these differences and brought an employment tribunal claim, asserting that the AWR had been breached.On appeal, the Employment Appeal Tribunal held the AWR require a term-by-term rather than a package approach. The agency or the end user cannot offset a failure to confer a specific entitlement with a higher rate of pay. The failure to pay for the full hour rest break was a breach of the AWR. The agency worker was, in effect, paid only £5.25 for his rest break, whereas his employed colleagues were paid £9.60. In addition, the failure to confer an extra 2.5 days' leave was also a breach which could not be 'compensated for' by the agency worker's higher hourly rate.The EAT accepted that it an agency worker may be given 30.5 days' leave but only paid at the time the leave was taken on 28 days, while maintaining a higher rate of rolled-up pay to compensate for the additional 2.5 days’ leave. While a rolled-up holiday pay arrangement is not possible in relation to the statutory minimum holiday entitlement as it has previously been ruled illegal, it can be used for additional contractual holiday leave, as was the case here. Any rolled-up holiday pay arrangement would have to be transparent, and the agency worker would have to be able to ascertain precisely what aspect of his or her remuneration relates to annual leave. In this case, the payment said to compensate for the 2.5 additional days' leave was neither transparent nor readily comprehensible, and so there was a breach of the AWR.This case makes it clear that when calculating an agency worker’s entitlement to the same basic terms and conditions as a hirer’s permanent employees, a term-by-term comparison must be carried out. There must be equal treatment in relation to the duration of working time, night work, rest periods, rest breaks and annual leave as well as pay. If a higher rate of pay is offered to cover additional contractual leave, then the elements of pay and holiday pay must be itemized to show that the agency worker is being compensated adequately for the leave in their enhanced rate. 2. 12.07% Calculation for Holiday Pay May Amount to UnderpaymentSince the Working Time Regulations first entitled workers to paid annual leave in 1998, it has been common practice for staffing firms and other employers of casual staff to calculate holiday pay as a percentage of the hourly rate and either accrue this amount until holiday leave is taken, or uplift the rate by this amount. In fact, ACAS guidance suggests the sum of 12.07% as the correct calculation being 5.6 weeks holiday divided by 46.4 weeks (i.e. 52 weeks minus the 5.6 weeks when the worker would not be working).But now a decision of the Employment Appeal Tribunal in Brazel v The Harpur Trust (EAT/0102/17) has stated this may lead to an underpayment where the worker works less than 46.4 weeks in a year.  Mrs Brazel was employed by The Ha‎rpur Trust as a part time music teacher and was engaged on a zero hours contract. She worked mostly during term time over the course of a school year, which varies between 32 and 35 weeks long. Her contract of employment entitled her to 5.6 weeks annual leave (in line with her statutory entitlement) and she was required to take her holidays outside of term time. The Trust paid her 12.07% of her annualised hours for periods of annual leave. This was paid in 3 instalments at the end of each term.The EAT found that for someone who has no normal working hours, the correct approach is to apply section 224 Employment Rights Act 1996. This states that holiday pay must be paid at the rate of a worker’s average earnings received in the 12-week period prior to taking annual leave, even though this could amount to a higher rate of holiday pay than the normal rate if the worker was employed for a greater number of hours or received a higher rate of pay during this period.This case demonstrates that adopting the approach of increasing hourly rates by 12.07% to include an element for holiday pay (‘rolled up holiday pay’) may produce the wrong result for temporary workers and may leave employers vulnerable to claims for unlawful deductions from wages. Payments already made in respect of holidays will be offset against this liability.In recent years holiday pay cases have decided that the “normal rate of pay” should include commission as well as compulsory overtime pay. Employers using the percentage method of calculating accrued holiday pay should check that this does not result in an underpayment compared with paying for holiday at the rate of an average week’s pay over the previous 12 weeks. 3. Working Time Law Requires a Single Uninterrupted Rest BreakThe Employment Appeal Tribunal (EAT) has considered whether a worker’s right to a compensatory rest break, under the Working Time Regulations 1998 (WTR), has to be one uninterrupted period of 20 minutes, or whether the time can be aggregated from a series of shorter breaks.In Crawford v Network Rail Infrastructure Ltd (EAT/0316/16) Mr. Crawford, was a railway signalman who provided relief cover at various signal boxes, most of which were single-manned. As a rail transport worker, he was a ‘special case’ category of worker under the WTR, meaning that he was excluded from the right to take a 20-minute rest break during shifts exceeding six hours. However, such workers are entitled to an equivalent period of ‘compensatory rest’ under the WTR.Mr. Crawford was permitted to take short breaks, which amounted to well over 20 minutes in total, during his eight-hour shifts, but he was always on call during these breaks. His employer, Network Rail, expressly provided that the break could comprise an aggregate of short ‘naturally occurring breaks’ between periods of operational demand. Mr. Crawford claimed that this arrangement did not comply with the requirements of the WTR, either for a rest break or for compensatory rest.The EAT allowed the appeal and held that adequate compensatory rest had not been provided. To be compliant with the requirements under the WTR, the compensatory rest must, as far as possible, amount to a break from work that lasts at least 20 minutes. It is not sufficient for the break to be an amalgamation of shorter periods of time. Unlike a standard rest break under the WTR, a compensatory rest break for ‘special case’ workers (such as those in the transport sector) can be taken while the worker remains on call.Employers should review their arrangements for providing workers with rest breaks if these are shorter than 20 minutes in a six-hour shift, even if the shorter breaks when added together provide a longer period of rest. 4. Employer Vicariously Liable for Employee Data BreachIn a rare class action case last year, 5518 employees of Morrisons Supermarket, whose payroll data had been unlawfully copied and uploaded to a file-sharing website by another employee, won a civil claim against Morrisons.A senior IT auditor at Morrisons, Andrew Skelton, unlawfully copied confidential payroll data to which he had access for limited legitimate purposes, and uploaded it to a file-sharing website. He then anonymously contacted several newspapers to alert them to the newly uploaded material. Skelton was found guilty of multiple criminal offences under the Computer Misuse Act 1990 and the Data Protection Act 1998 and was sentenced to eight years’ imprisonment.The Court held that Morrisons did not directly misuse any information personal to the data subjects. Nor did they authorise its misuse, nor permit it by any carelessness on their part. Although Morrisons did have obligations to take appropriate security measures, the court was satisfied that the system in place was sensible and necessary. Morrisons had limited access to the data as far as it could, had internal checks to see who had accessed the data, and had no reasons to suspect that Skelton posed a security threat. As such they were not directly liable under the Data Protection Act, but the Court held that they were vicariously liable as Mr. Skelton’s employer. Vicarious liability is legal responsibility imposed on an employer, even though the employer is free from blame, for a tort or civil wrong, committed by his employee in the course of his employment.In his judgement, the High Court judge expressed concern that in finding Morrisons vicariously liable he was furthering Mr. Skelton’s aim of harming his employer. He therefore granted Morrisons leave to appeal.This may not be the final conclusion in this case, but it underlines the importance of ensuring robust and adequate security measures are in place, including doing everything possible to eliminate the chances of employee’s causing a data breach either negligently or maliciously. If Morrisons had not correctly complied with the requirements of the Data Protection Act they would also have been facing a fine, and with the penalties being increased under the forthcoming GDPR the consequences of this case may have been a great deal more costly for Morrisons. 5. National Minimum Wage and Statutory Payment Rates Rise From April 2018From 1 April 2018, the hourly minimum wage rates will be as follows: National Living Wage (for those aged 25+) £7.83 Standard adult rate (for those aged 21+) £7.38 Development rate (for those aged 18-20) £5.90 Young workers rate (for those aged 16-17) £4.20 Apprentice rate £3.70 The standard rates of statutory maternity, paternity, adoption and shared parental leave pay increase to £145.18 per week (currently £140.98) from 1 April. Maternity Allowance will increase by the same rate but not until 9 April. The standard rate of statutory sick pay increases to £92.05 per week (currently £89.35) from 6 April. 6. Basic Criminal Conviction Checks Now Available to AllIn January 2018 the Disclosure and Barring Service (DBS) launched a basic check service for people living in England and Wales. Previously, this was only available from Disclosure Scotland.A basic check is a criminal record check that can be requested by individuals rather than by a prospective employer. It can be used for any position or purpose. A basic check will contain details of convictions and conditional cautions that are considered unspent under the terms of the Rehabilitation of Offenders Act (ROA) 1974.Standard Disclosures have been available to employers for positions of high responsibility in the financial and legal industries, while Enhanced DBS Checks have been pre-requisites in many education and healthcare roles involving working with children or vulnerable adults since the forerunner to the DBS, the Criminal Records Bureau, was established in 2002. 7. Government Consultation on Agency Work in Response to Taylor ReviewOn 7 February 2018, the UK government announced that millions of flexible workers will receive new rights under major government reforms as part of its “Good Work Plan”. These reforms are in response to the independent review of modern working practices, chaired by Matthew Taylor, which published its recommendations in July 2017.Before proceeding with the plan, the government has published four consultations on various aspects of the reform including consultations on the recommendations in relation to agency workers in the Taylor Review and on employment status of workers.The consultation on agency workers invites responses by 9 May 2018. The recommendations made by the review that are in scope for this consultation are: Government should amend the legislation to improve the transparency of information which must be provided to work seekers both in terms of rates of pay and those responsible for paying them; The Director of Labour Market Enforcement should consider whether the remit of the government’s Employment Agency Standards Inspectorate (EASI) ought to be extended to cover policing umbrella companies and other intermediaries e.g. MSP in the supply chain; The government should repeal the ‘Swedish Derogation’ within the Agency Workers Regulations (AWR) that allows employers to opt out of equal pay entitlements by issuing workers with “pay between assignments” (PBA) contracts; and The government should consider extending the remit of EASI to include compliance with the AWR, including the use of the Swedish Derogation. The consultation on employment status invites responses by 1 June 2018 and seeks views on whether the employment status tests developed by the courts, should be codified in primary legislation, with guidance provided by secondary legislation.Employment status determines an individual’s entitlement to statutory employment rights and the tax regime that applies to their income. Currently, where an individual’s employment status is in dispute it can only be resolved by a court, while legislation establishes the rights and obligations that flow from a determination. The consultation paper argues that with the emergence of the gig economy, where digitalisation is used to allocate work, employment status is not straightforward to determine because doing so requires the application of decades-old tests to be applied to these new arrangements. Tax status can also differ from employment status.One of the established tests is to determine the level of control that an employer exerts over an individual performing work for them. An alternative approach is to develop a more precise test based around objective criteria, such as length of engagement, percentage of income earned from a single employer, or performing work that is not related to the core activity of the business or not located at the company’s place of business.If you wish to respond to either of these consultations you must do so before the deadline for responses and either respond online, by email or write to the Department for Business, Energy & Industrial Strategy. 8. ACAS Publishes Guidance for Agency WorkersAs government estimates suggest that the total number of individuals working through staffing agencies will rise to one million by 2020, ACAS (Arbitration, Conciliation and Advisory Service) has published guidance for agency workers.The guidance explains the term “agency worker” and provides information on what individuals should expect on registering with an agency and accepting a contract to perform temporary work. It outlines the content of a standard agency contract and a “pay-between-assignments” (Swedish Derogation) contract, and mentions the fact that some agencies require workers to sign up with umbrella companies before finding them work. There is also a section explaining an agency worker’s rights while working for an agency. […]

  • The UK Gender Pay Gap

    From 2017, any organisation that has 250 or more employees must publish and report specific figures about their gender pay gap. As Carolyn Fairbairn, CBI Director-General, says: “Gender pay gap reporting is an opportunity for businesses to drive change in their workplaces. For the first time, every larger firm will know the average pay difference between men and women in their company.   What gets measured gets changed - helping to develop more inclusive workplaces and support more women into senior roles."The gender pay gap is the difference between the average earnings of men and women, expressed relative to men’s earnings. Currently, women earn 9.5 % less than men per hour nationally based on a median measure1 for the 12 months leading up to 5 April 2017;Distinguishing the gender pay gap from equal pay is important. Equal pay issues arise where men are paid differently to women for the same work (or work of equal value), and this has been against the law since the Equal Pay Act was introduced in 1970. In comparison, the gender pay gap involves comparing the pay of men and women within an organisation irrespective of their position and the work they do.Many companies (including many staffing companies) pointed out that the reason there appeared to be a gender pay gap was because men were in more senior positions without providing any reason for why men are in more senior positions than women.The difficulty for the staffing industry is the definition of employment used (s.83 of the Equality Act 2010) includes anyone employed under a contract of employment or a contract personally to do work. So, all agency workers with these types of contract and some self-employed individuals will be included in the data reported by staffing firms.As Adecco points out: Although we ensure our temporary workers are paid fairly and in accordance with all legislation (including National Minimum Wage legislation and the Agency Workers Regulations 2010), we have limited influence over the pay of these workers as it depends on the rate specified by a particular client.  Without the ability to influence or change pay rates there is little scope to implement solutions. We supply workers to a range of clients across a number of different sectors.  These workers will be placed in a variety of roles, so it is challenging to compare the data or identify any meaningful trends.So what useful data can we get out of the data? Some staffing firms recognising this dichotomy took it upon themselves to provide separate disclosure for each category of workers, even though they were not required to under the law. This data can be found in their “Employer's gender pay gap report” a link to which can be found in the spreadsheet below.An exemplary example of this full disclosure is the Hays Gender Pay Gap report which provides detailed information on ‘Hays' own employees in Great Britain’ (approximately 3,000 people) as well as temporaries working under Contracts for Services placed with Hays’ clients (approximately 10,000 people). The information presented shows the difference between what the government requires and the data for the company’s own employees. Unlike Hays, however, most staffing firms took the easy option (the minimum required under the law) and bundled both groups of workers together. Combining both groups of workers in this way may muddy the waters, but the results will mostly reflect pay differences among temporary workers as there will be many more temporary workers in the sample than own employees. Intriguingly, the data does seem to intimate that temporary workers have better gender pay equality than workers overall – though, without knowing the exact split between temporary workers and staffing firms’ own employees, the exact percentages cannot be properly calculated.The bonus data that was also required is shown in the spreadsheet below. This may provide a cleaner set of data as, generally, temporary workers do not receive bonuses. Therefore, the bonus data is more likely to reflect differences in bonuses amongst staffing firms’ own employees.The average proportion of men who receive a bonus is 32.9% compared to 31.6% of women in 19 out of 20 of the largest staffing firms in the UK2. This compares to a national average of 35.7%/34.2% respectively and 20.4%/21.0% for the 291 staffing industry firms that reported their gender pay.The average difference between male and female bonus payments for the largest firms is 22.3% in favour of men. This is higher than the national average of 7.5% in favour of men. Surprisingly, however, when we look at the data for all staffing firms that reported women received bonuses 9% higher than men.The median rate for the largest staffing firms is 10.3%, again above the national average of 5.4% and the average of 0% for all staffing firms that reported data. The proportion of staff receiving bonus payments is shown in the chart below. Another area in the company’s reports that may provide useful is information on what they are doing to manage and improve their organisation’s gender pay gap. For example, Impellam are creating a diversity and inclusion network. Developing a culture of Virtuosity3. Providing unconscious bias training and using Open Blend to facilitate conversation around flexible working.Hays are taking steps to ensure their policies, procedures and benefits are as clear and transparent as possible on things like maternity and parental leave and raising the profile of female role models within the company; as well as introducing leadership development and unconscious bias training.While Manpower is running development sessions for their senior leaders to help them adopt an inclusive mindset. Aiming to ensure UK leaders have a 50/50 male/female succession plan and creating exposure opportunities for their high potential females to lead high impact, high-value business projects.If you want to know more about similar schemes you may want to look at the Advisory, Conciliation and Arbitration Service (Acas) website. This provides advice on managing your organisation’s gender pay gap and also provides information about what actions employers can take to close the gender pay gap. While the BBC sets out nine ways to narrow the gender pay gap.Taking the reservations about the data mentioned above, you can still find the data for staffing industry firms and links to their reports where available in the spreadsheet below. Staffing Industry Gender Pay Gap Data 20180418 - You do not have permission to view this object. To access the data reports for all companies, click here.Notes1. The figure used most regularly is the median gender pay gap. To help bring this to life, imagine all of the women at a staffing firm standing in one line, from lowest paid by hour to highest, and all of the men doing the same in another line. The median gender pay gap is the percentage difference in hourly pay between the woman in the middle of the line and the man in the middle of the line. Hourly pay includes leave and any shift premiums, but not overtime.   The mean gender pay gap is the percentage difference in the average pay of men and women. This is calculated by adding up all of the hourly pay rates for all of the women in a business and dividing it by the number of women, then doing the same for the men and comparing the difference. The mean can be affected by different numbers of men and women in different roles. This is why we also report the number of men and women in different pay quartiles.  2. One firm haven’t submitted anything to date 3. Doing what people do best enabled by reliable technology […]

  • Asia Pacific Legal Update Q1 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem in Asia Pacific in Q1 2018:Australia Queensland Labour Hire Regulations Published Global Talent Scheme to Attract Highly Skilled Migrants on New TSS Visa Uber’s Independent Contractor Classification Upheld by FWC Labour Hire Employee Unfairly Dismissed China Rules on Foreign Ownership of Recruitment Firms Relaxed India Maharashtra Shops Bill Changes to Working Time Employers in all Sectors Can Hire Fixed Term Contractors Directly Japan Fixed Term Employees Can Exercise Right to Indefinite Employment  New Zealand Labour Hire Workers Held to be Employees of the Hirer  Singapore Employment Act Changes for April 2019 New Tripartite Standards in Recruitment South Korea Changes to Working Time 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:AsiaPacific_LegalUpdate_Q1_20180418 Australia   1. Queensland Labour Hire Regulations PublishedThe Labour Hire Licensing Act 2017 (Qld) came into force on 16 April 2018. On Friday 6 April 2018, the Queensland Parliament published regulations that clarify the scope of the regime and the information that must accompany an application for a labour hire licence. Labour hire providers caught by the regime have 60 days from the commencement of the legislation to apply for a licence. A person provides labour hire services if, in the course of carrying on a business, the person supplies, to another person, a worker to do work. The regulations clarify the definition of a “worker” and exclude certain categories of individual. Exemptions include high-income earners not covered by a modern award or enterprise agreement or Queensland’s industrial relations system; individuals who are supplied by one entity to another which is part of the same group; and secondments of an in-house employee of a provider or similar arrangements. An ‘in-house-employee’ of a provider is an individual who: is engaged as an employee by the provider on a regular and systematic basis; has a reasonable expectation the employment with the provider will continue; and primarily performs work for the provider other than as a worker supplied to another person to do work for the other person. The regulations prescribe a long list of information that must accompany an application for a labour hire licence and set out the fees associated with applying for, renewing or restoring a licence.Any business providing or utilising labour hire arrangements must establish whether the entity providing the labour hire worker needs to be licensed; and if so, collate the required information and submit the necessary application before Friday 15 June 2018. Cooper Grace Ward provide further details of the regulations. A dedicated website has been set up by the Queensland government to provide information and facilitate licence applications. 2. Global Talent Scheme to Attract Highly Skilled Migrants on New TSS VisaThe Government has announced the pilot of a new visa scheme to attract highly skilled global talent and deliver innovation to Australia from 1 July 2018. Established businesses with an annual turnover of more than AUD4 million (USD3.08m) will be able to sponsor highly skilled and experienced individuals for positions with earnings above AUD180,000 (USD138,600) into Australia. The sponsoring business must have a track record of hiring and training Australians and be able to demonstrate that they prioritise the employment of Australians. They will also have to show that there will be a transfer of skills to Australian workers from the visa-holder. Technology-based and STEM-related start-up businesses, recognised by a start-up authority, will also be able to sponsor experienced people with specialised technology skills. In both instances, a four-year Temporary Skill Shortage (TSS) visa will be issued with permanent residence applications available after three years. As of 1 March 2018, the TSS visa replaced the Temporary Work (Skilled) visa (subclass 457). The TSS visa requirements are more stringent than the criteria required to obtain a 457 visa and include: expanded requirements for employers to advertise jobs in Australia before hiring overseas workers; strengthened English language requirements; instituting a requirement for sponsored applicants to have at least two years of work experience (with some adjustments for specific occupations); maximum visa terms of two years for the short term stream, with capacity for one renewal, and four years for the medium-term stream; and eligibility for permanent residence arises only after three years, compared with two years under the 457 Visa. The Government will consult further on the details of the scheme over the next few months, before piloting it for 12 months, starting 1 July 2018. According to the Minister for Citizenship and Multicultural Affairs, an industry advisory group will provide ongoing guidance for the pilot. 3. Uber’s Independent Contractor Classification Upheld by FWCIn Kaseris v Rasier Pacific VOF the Fair Work Commission (FWC) rejected an Uber driver's claim that he was an employee, and upheld Uber's argument that he was instead an independent contractor.Michail Kaseris applied to the FWC for a remedy for unfair dismissal under s. 394 of the Fair Work Act 2009 after his access to the Uber Partner App, used to receive and accept rides, was deactivated on the basis of a low driver rating. For the application to succeed, Mr Kaseris had to establish that he was an employee of Uber, and for an employment relationship to exist, certain fundamental elements must be present.The FWC set out the law stating that “a contract of employment is, at its essence, a work-wages bargain, so that the ‘irreducible minimum of mutual obligation’ necessary to create such a contract is an obligation on the one side to perform the work or services that may reasonably be demanded under the contract, and on the other side to pay for such work or services”. In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf. The nature of the work performed, and the manner in which it is performed must always be considered, and the terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole.The FWC also listed indicia identified by previous case law that should be considered, including: whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like; whether the worker provides and maintains significant tools or equipment; whether income tax is deducted from remuneration paid to the worker; and whether the putative employer presents the worker to the world at large as an emanation of the business, e.g. by the requirement to wear a uniform or display a logo.The FWC found that in this case, Mr Kaseris was able to choose when to log in and log off the Partner App, he had control over the hours he wanted to work, was able to accept or refuse trip requests (with some caveats), and he was free to choose how he operated and maintained his vehicle. To use the Partner App and charge fares, Mr Kaseris supplied his own vehicle, smartphone and wireless data plan. Without these, he could not provide transportation services of the kind he provided. Additionally, at his own cost, he maintained a valid registration and full comprehensive insurance on the vehicle. He did not and was not required to wear any uniform or other clothing which illustrates to the world that he was attached to or connected or associated with the Uber brand.Finally, the income received by Mr Kaseris was not treated by the parties as subject to income tax. The Australian Taxation Office (ATO) mandates that individuals who are engaged in ride-sharing must obtain an Australian business number, register for GST, pay GST on the full fare, only claim GST credit related to transporting passengers, lodge business activity statements and know how to issue a tax invoice. All these factors weighed in favour of an independent contractor relationship.  On the other side of the equation, where there is a significantly high demand for transportation services, Uber has the right to increase the rate at which fares are charged. The Services Agreement between Uber and its drivers also provides service standards that Uber enforces to protect their brand such as maintenance of the vehicle and safe driving practices. Although these factors showed some control, the FWC said they are not overwhelmingly strong factors.Having considered the evidence in the light of the existing tests of employment, the Deputy President of the FWC dismissed the application stating “It seems to me plainly to be the case that the relevant indicators of an employment relationship are absent in this case. The overwhelming weight of the relevant indicia point the other way.” He found that Mr Kaseris was not an employee for the purposes of s.382 of the Act and was therefore not a person protected from unfair dismissal.This decision is opposite to the decision of the Employment Appeal Tribunal in the UK in Aslam and others v Uber B.V. and others, where Uber drivers were held to be employees on broadly similar facts. The FWC distinguished the UK case on the basis that the governing legislation in the UK was different from Australia, where the definition of an employee is narrower. 4. Labour Hire Employee Unfairly Dismissed In the case of Manisha Kumar v Australia Personnel Global Pty Ltd, the Fair Work Commission (FWC) has held that where a dismissal of a temporary worker is unfair, a labour hire company cannot rely on the defence that it was merely complying with the decision of the host employer.Ms Kumar sought a remedy for alleged unfair dismissal by Australian Personnel Global Pty Ltd ("APG"), a labour hire company, pursuant to the Fair Work Act. APG employed Ms Kumar to work as a casual employee for a host employer in January 2013. APG terminated Ms Kumar's employment in June 2017 due to the host employer's reports of "ongoing issues with punctuality and attendance". Ms Kumar was not subject to any warnings in respect of her alleged unsatisfactory performance nor was she given an opportunity to respond to the host employer's allegations. APG did not take reasonable steps to engage with her and failed to seek alternative work for her. The FWC recognised that employees employed by labour hire companies face difficulties seeking an unfair dismissal remedy where they are not an employee of the host employer. Accordingly, the contract between a labour hire company and a host employer must not prevent an employee from seeking an unfair dismissal remedy or be used to abrogate their responsibility to treat employees fairly. Labour hire employers cannot contract out of unfair dismissal law.The Fair Work Act lists factors that the FWC must take into account when determining whether it is satisfied that a dismissal was harsh, unjust or unreasonable. These factors include whether there was a valid reason for the dismissal relating to the employee's capacity or conduct, and whether the employee was given an opportunity to respond to the employer's allegations.The FWC held that Ms Kumar's dismissal was unfair and awarded her AUD8,597.31 (USD6,623) in compensation. APG's failure to investigate properly the work performance allegations made against Ms Kumar by the host employer were relevant to the decision.Labour hire companies should investigate properly the reasons why a host employer has made a decision to terminate a temporary worker's employment contract. They should also consider if redeployment is possible and/or suitable in the circumstances. China Rules on Foreign Ownership of Recruitment Firms Relaxed Beijing’s Human Resources and Social Security Bureau recently announced that it had relaxed the rules on foreign ownership of recruitment businesses in the city. They have increased the level of permitted share ownership for foreign companies investing in joint venture businesses from 49% to 70%; and also removed the requirement that foreign investors have at least three years’ experience in the recruitment industry overseas before entering the Beijing market. India   1. Maharashtra Shops Bill Changes to Working TimeMaharashtra is the first state in India to reform its law in relation to shops and other commercial establishments. Under the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 firms that employ more than 10 workers must obtain a license within 60 days after the new Act comes into effect (20 December 2017) or once a firm’s current license expires. The registration can be done online, and all records will be maintained electronically. Further, the commercial entity can determine the period of validity of its registration, which cannot exceed 10 years. Firms which employ less than 10 workers must still register under the Act but do not require a license.Working hours and overtime pay. Working hours shall not exceed nine hours in any day and 48 hours in any week. Workers shall be given a break of at least half an hour after working for five hours continuously, except in case of urgent work with the previous permission of the local Facilitator. Overtime pay shall be paid for work beyond nine hours a day or 48 hours a week. The overtime pay shall be at the rate of twice the worker's ordinary rate of wages. The total number of overtime hours shall not exceed 125 hours in three months.Protection for female employees. The Act prohibits discrimination of women employees in the matter of recruitment, training, transfers or promotion or wages and restricts working hours for women employees to the hours of 7:00 am to 9:30 pm. Women employees shall be allowed to work between the hours 9:30 pm and 7:00 am, only if measures ensuring the adequate protection of their dignity, honour and safety, protection from sexual harassment and transportation from the establishment to their home are provided by the employer.Rest breaks. Every worker shall be given one day off each week. Compensatory leave shall be given if the worker works on their weekly rest day and the worker shall be entitled to wages at the rate of twice his ordinary rate of wages.Annual leave. Every worker shall be entitled to eight days casual leave in every calendar year, which shall lapse if not taken before the end of the year. A worker shall be entitled to eight paid festival holidays in a calendar year. Every worker shall be permitted to accumulate earned leave up to a maximum of 45 days.The Act also requires establishments to take measures in relation to lighting, heating and ventilation and fire prevention for the welfare of workers health and safety, as well as providing drinking water, toilets, canteen and crèche facilities.On 2 February 2018, the Government of Maharashtra notified draft Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules, 2018 under the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 (2017 Act) for public comments. The Draft Rules, once made effective, will repeal the Maharashtra Shops and Establishments Rules, 1961 (1961 Rules). Key highlights of the draft rules are provided by Khaitan & Co. 2. Employers in all Sectors Can Hire Fixed Term Contractors DirectlyOn 8 January 2018, India’s Labour Ministry issued a draft notification to allow all businesses to offer fixed-term contracts to workers across all sectors. In addition, employers can directly hire a worker for a fixed-term without mediation by a contractor.Prior to this, the government has only allowed fixed-term employment in the clothing manufacturing sector and had proposed to extend it to other sectors including the footwear, leather, and accessories sector. Also, fixed term contract workers could only be hired through ‘contractors’ (licensed staffing agencies).The draft notification is part of the Industrial Employment (Standing Orders) Central (Amendment) Rules, 2018. This allows industries to hire workers for short-term assignments and terminate their services once the projects are completed. The government stated that this move will help "attract large-scale investments at global scale".The Labour Ministry defines a ‘fixed term employment’ workman as “a workman who has been engaged on the basis of a contract of employment for a fixed period provided that his hours of work, wages, allowances and other benefits shall not be less than that of a permanent workman; and he shall be eligible for all statutory benefits available to a permanent workman proportionately according to the period of service rendered by him even if his period of employment does not extend to the qualifying period of employment required in the statute”. Under fixed-term employment, workers are entitled to all statutory benefits available to a permanent worker in the same factory, including the same working hours, wages, and allowances. However, employers are not required to give notice to a fixed-term worker on non-renewal or expiry of his or her contract.Trade unions continue to oppose fixed-term employment, but this represents a significant move towards a more flexible labour market. However, it may impact staffing firms as employers are no longer bound to hire contract workers through a contractor. Japan Fixed Term Employees Can Exercise Right to Indefinite EmploymentAs of 1 April 2018, all workers engaged on fixed-term contracts for a total of 5 years since the Labour Contracts Act was amended in April 2013, including dispatch workers, have the right to request a permanent employment contract. This is a right which the employer cannot refuse.An employee can exercise the right to convert his or her employment contract to an indefinite term employment contract during the term of the employment contract that is ongoing when the employee's total length of service with an employer exceeds five years. In calculating the five-year period, the employee must have had consecutive fixed-term employment contracts, without breaks between the individual contracts in excess of six months.Once the right has been exercised, the employee and his or her employer will be deemed to have entered into an indefinite term employment contract immediately after the expiration of the fixed-term employment contract that was effective when the right was exercised. Additionally, the terms and conditions of the indefinite term employment contract, other than the period of the employment contract, will be deemed to be the same as those set out in the fixed-term employment contract that was effective when the right was exercised unless otherwise stated in the employer's work rules or other documents.Under Article 19 of the Labour Contracts Act, a fixed-term employee is entitled to have his or her employment contract renewed even if the employer refuses to do so if: the employee is deemed to have reasonable grounds to believe that his or her contract was going to be renewed; and such refusal lacks justifiable grounds. When determining whether an employee has reasonable grounds for renewal, the courts will consider various factors, including: the employee's total length of service; and the number of renewals made in the past. There are exemptions to this rule for highly paid fixed term contract employees and employees who work after their retirement age. For a professional, e.g., PhD holders, certified public accountants to be exempt, they must be working on a limited-term project for more than five years and less than ten years, with an annual salary of more than JPY1,0750,000 (USD100,500). Employers should review their workforce to identify which employees might be eligible to exercise this right after 1 April 2018. New Zealand  Labour Hire Workers Held to be Employees of the Hirer  In Prasad v LSG Sky Chefs New Zealand Limited, the Employment Court upheld a claim that two workers engaged through an agency arrangement were actually employed by the end-user company.The Court concluded that the workers were employed by the end-user, on the basis that there was non-existent or unclear contractual documentation about the relationship between the parties, there was a significant degree of control by the end-user company over the workers, and the work was for an indefinite period. In deciding this issue, the Court looked at the “real nature” of the relationship between the workers and end-user company and how this operated in practice. The Court concluded that the contracts were poorly drafted, and the workers lacked any understanding of the nature of their legal relationship with either the labour hire provider, Solutions or the hirer, LSG.The Court also found that the relationship was more analogous with an employer-employee relationship than independent contractors. For example, the workers worked solely for the end-user company, had little control over when, how or what work they did, wore the uniforms of the end-user company, and complied with the end-user’s practice of filling out time sheets. The Court compared the workers with employees directly employed by the end-user company and found little distinction between the two in practice.The Employment Court’s decision highlights the fact that labour-hire workers will not automatically be considered workers according to the title they are given. The real relationship will depend on the facts of each case. This decision also emphasises the importance of having unambiguous and properly drafted contractual documentation between a labour hire provider and the workers it supplies, as well as an agreement between the provider and the hirer. Singapore    1. Employment Act Changes for April 2019On 5 March 2018, the Minister for Manpower laid out plans for changes to the Employment Act to extend employee benefits to a greater number of employees.As part of changes to the Employment Act, the ministry will be removing a salary cap criteria that excludes employees who make more than SGD 4,500 (USD 3,437) from benefits such as public holiday and sick leave entitlements, timely payment of salary and allowable deductions. With the removal of the cap, an additional 430,000 professionals, managers and executives (PMEs) will be able to enjoy the benefits, out of a total 720,000 PMEs in the workforce currently. This does not include public servants, domestic workers and seafarers who are covered separately, by other Acts due to the nature of their work.Other changes to the Employment Act will see the salary cap for non-workmen, who are typically white-collar workers such as clerks, go up from SGD 2,500 (USD 1,909) to SGD 2,600 (USD 1,986). The rise will cover half of the workforce. In terms of overtime pay, the salary cap for these types of workers will also be revised upwards from SGD 2,250 (USD 1,719) to SGD 2,600 (USD 1,986).The amendments to Singapore’s Employment Act will be implemented by 1 April 2019. 2. New Tripartite Standards in RecruitmentIn November 2017, the Ministry of Manpower (MoM) launched the Tripartite Standards on Recruitment Practices to provide a clear framework for employers to follow when recruiting new employees. The aim of the framework is to ensure that all recruitment procedures are carried out fairly and are merit-based. Tripartite Standards are not mandatory, but adopting these guidelines allows employers to show that they follow best practice.The Tripartite Standards advise employers to adopt the following best practices: Job Advertisements should only state the selection criteria that are related to the qualifications, skills, knowledge and experience required for the job. If a particular attribute is required for a role, and that attribute appears to exclude candidates on divisive grounds, then the reasons for requiring that attribute should be stated clearly in the job advertisement. For example, if the ability to speak Mandarin is required, the job advertisement should state the reasons why the employer requires the candidate to be fluent in Mandarin. Job Application Forms should only request information that is required to assess the candidate's suitability for a role. The form should not ask for information on age, date of birth, gender, race, religion, marital status, family responsibilities (including whether a candidate is pregnant or has children) or disabilities, unless the information is required to assess a candidate's suitability for a role. Reasons should be provided if such information is requested. Job Interviews must be carried out by following objective selection criteria consistently. A proper record of the interview, assessment process, tests and job offer should be made and kept for at least one year. Unsuccessful candidates should be informed of the outcome of their interview. To meet these standards, hiring managers and staff should be trained to conduct fair and unbiased interviews. South Korea  Changes to Working TimeOn 28 February 2018, the National Assembly passed a legislative amendment designed to reform the Labour Standards Act. The amendment includes a change to the definition of a “working week” from five days (e.g. Monday to Friday) to seven days, including weekends. Permitted weekly overtime remains limited to 12 hours. In effect, this limits employers to a maximum of 52 working hours per week, as previously employers could ask employees to work 8 hours on each of Saturday and Sunday in addition to the “work week”. Employees who are at least 15 years of age but younger than 18 years of age are to be subject to a maximum workweek of 35 hours plus five overtime hours, a decrease from 40 hours plus six overtime hours, under the amendments.This amendment is to be phased in according to the size of the business: 1 July 2018 – businesses with 300 or more employees; 1 January 2020 – businesses with 50 to 299 employees; and 1 July 2021 – businesses with 49 or fewer employees. From 1 July 2021 to 31 December 2022, employers with fewer than 30 employees may enforce eight extra working hours per work week in addition to the 52-hour limit via a separate written agreement with the employee representative.From 1 September 2018, the number of industries which are exempt from the 12-hour limit on overtime will be reduced from 25 to just 5: land transportation (excluding bus companies), marine transportation, air transportation, other transportation services (e.g., parcel delivery) and healthcare industries. Exempt employers must allow at least 11 consecutive hours of rest before each work day.The amendments also clarify the law in relation to compensation for overtime and holiday work allowances. An employee who works for less than eight hours on a day off or holiday is entitled to 150% of his or her ordinary wage as holiday allowance. An employee is entitled to 200% of his or her ordinary wage only when he or she works for more than eight hours on a day off or holiday as both overtime and holiday work. This amendment is effective immediately from the date of promulgation.Another amendment extends the annual leave system to cover the first year of employment, which will take effect on 29 May 2018. At present, employees are entitled to 15 days of leave for the first two years of employment combined. The amendment will provide employees who have worked for less than a year at their current job (as of 29 May) with up to 11 days of leave for year 1 and 15 days for each subsequent year (Article 60, Section 3). It is worth noting that unpaid statutory childcare leave will be counted as days worked in calculating the days of annual leave to which an employee is entitled (Article 60, Section 6(3)).The new legislation is projected to have a significant impact on all industries and levels. According to a study by the Korea Economic Research Institute, the additional annual labour costs that companies will incur is likely to exceed KRW12 trillion (USD11 billion) in total. Employers should prepare for the changes by reviewing work schedules and policies and making any necessary adjustments to ensure compliance with the new rules. […]

  • MSP/VMS Program Participation Part 3: How staffing suppliers can be profitable

    Below are 12 recommendations to help secure profitability as a listed supplier to an on-going and established Contingent Workforce (CW) program under MSP/VMS management:  Determine account profitability Assess the minimum profitability required per account Check business potential for increased sales Maximize the supplier benefits of the CW program Carefully review the job description with client needs Develop a pool of candidates where demand justifies Focus on longer term placements Maximize awarding ratio Leverage cross-selling opportunities Supplying to another MSP client  Improvement of contractual terms and conditions Innovate selectively Click the link below to download the report: MSPVMS Program Participation Part 3 20180416 - You do not have permission to view this object. […]

  • VMS MSP Provider List

    The VMS MSP Provders listed in this report represent the providers that SIA have visibility of and represents companies from all regions, Americas, EMEA and APAC.Users are able to apply filters based on whether they are interested in VMS providers, MSP providers, regional capability or a specific industry focus. Providers have shown capability based on the SIA definitions of MSP and VMS outlined below Managed Service Provider (MSP) A company that takes on primary responsibility for managing an organization’s contingent workforce program where the process is outsourced. An MSP may or may not be independent of a staffing supplier. Typical responsibilities of an MSP include overall program management, reporting and tracking, supplier selection and management, order distribution, and consolidated billing across program suppliers. Please note that the MSP manages the CW program (or part of the program); the VMS is only the technology used by either the MSP or client to manage the program. Vendor Management System (VMS) An Internet-enabled contingent worker sourcing and billing application that enables a company to procure and manage a wide range of contingent workers and services in accordance with client business rules. Typical features of a VMS include supplier profiling, requisition or order creation and distribution, candidate submissions, on- and off-boarding, time and expense keeping, vouchering, consolidated billing and reporting.Click here for the report: VMS MSP Provider List 20180410 - You do not have permission to view this object. […]

  • MSP/VMS Program Participation Part 2: How staffing suppliers can stay on the list and grow their business

    Below are 12 recommendations to limit the risk of being removed from the Approved Supplier List (ASL) of a newly implemented, or on-going and established MSP/VMS program and improve the opportunities to grow business when being added to the ASL: Carefully analyze the Supplier Agreement (SA) Be prepared for audits Focus on maximizing the KPI scores Ensure KPI scores are correctly calculated Do respond to requisitions and do it quickly Quality first Prepare a pool of frequently requested contingent workers Prepare contingent workers on their assignment Ask for feedback Contact the MSP provider regularly (Account Management) Show commitment to CW program success Continually explore ways to provide your services at a lower cost References to the "MSP/VMS program" within this report refers to CW programs managed with an external MSP, or it could be internally managed, and the program is typically be supported through VMS technology. Click the link below to download the report: MSPVMS Program Participation Part 2 20180406 - You do not have permission to view this object. […]