In this article, member firms of Ius Laboris, report on the most significant employment law developments in their jurisdictions for 2019. Contributors including Birgit Vogt Majarek and Sarah Lurf of Schima Mayer Starlinger – lus Laboris
Amendments to the Austrian Act against Unfair Competition relating to ‘business secrets’. As a result of Directive 2016/943/EU on the protection of trade secrets, the Austrian Act against Unfair Competition was amended with effect from 29 January 2019, so that it now contains a concrete definition of the term ‘business secret’. Before this amendment, ‘business secrets’ were not legally defined in Austria, even though they were often the subject of court disputes. It is expected that the new definition of the term will make it harder to take action against employees who disclose sensitive information that they became aware of during their employment, since the requirements for pursuing a claim against an employee on this ground are now stricter. It is now crucial to establish whether the employer sufficiently protected the ‘business information’ since otherwise no general protection for this information exists.
Single permit for foreign employees in Belgium
Belgium has transposed the EU ‘Single Permit’ Directive (2011/98/EU) under which foreign employees will only be required to obtain a single authorisation to work and reside in a member state. The federal act approving the Cooperation Agreement (between the competent federal and regional authorities) was published on 24 December 2018 and the single permit has entered into force. From now, a new single (but longer) application procedure for obtaining a single permit to work and reside in Belgium for a period longer than 90 days will have to be followed throughout Belgium.
Besides the new procedural rules that apply throughout Belgium, new conditions for employing foreign workers in Flanders have taken effect from 2019. The Flemish Region introduced a new economic migration model based on three separate profiles: highly qualified and special profiles, certain medium-skilled profiles (only for shortage professions listed in a dynamic shortage profession list) and profiles belonging to a residual category who are subject to a labour market test and for whom ‘special economic and social reasons’ must be established. These new rules only apply in Flanders and not in Brussels or Wallonia.
Soft ‘runways’ for older workers
A Royal Decree has extended the use of ‘soft runways’ (the term used for a reduction of the workload of older workers) in Belgian workplaces. The Decree aims to give individual employees the opportunity to join the system in the absence of a collective agreement at a sector level. The decree entered into force on 1 January 2019.
As a result of the #MeToo movement, the Ministry of Employment proposed an amendment to the Act on Equal Treatment of Men and Women. The amendment was enacted shortly before Christmas 2018 and came into force on 1 January 2019. Following this amendment, the Act now specifies that employers’ obligation to provide equal employment terms for men and women includes a prohibition on sexual harassment. The prohibition was already laid down in the previous Act; however, with the amendment it is now specified even more clearly.
Further, the amendment has specified that ‘casual’, ‘informal’ or ‘bantering’ workplace behaviour or language does not mean that employees must generally put up with offensive behaviour or language that would have been regarded as unacceptable if the tone of communication or conduct at the workplace were more professional or restrictive. The enactment of the Act will without doubt contribute to continued focus on sexual harassment in the workplace, and we expect that in 2019 employers will consider implementing or changing internal policies on workplace behaviour.
Equality between men and women
Since the introduction of the law of 5 September 2018 (entitled the ‘law on the freedom to choose one’s professional future’), companies are required to show actual results in the field of equal pay for women and men and no longer simply that they have put in place the means to achieve equality.
This law requires companies to self-assess according to whether they meet the following criteria: the elimination of wage gaps between women and men, in comparable positions and of comparable ages; there is the same chance of getting a raise for women as for men; there is the same scope to get a promotion for women as for men; there are at least four women or men in the top ten highest paid jobs; all employees’ salaries are increased upon their return from maternity leave.
This self-assessment will generate a number of points (from 0 to 100 points, where 100 points means perfect equality) which will be published on the company’s website. In a few years, companies that have not reached 75 points will be subject to a financial penalty. The implementation of the law is progressive: in 2019, companies with at least 1000 employees will be affected by the obligation to publish by 1 March; those with more than 250 employees must publish by 1 September.
The Budget Law for 2019 (Law No. 145/2018), which entered into force on 1 January 2019 introduced a number of new provisions into Italian employment law. Two of the main changes relate to support for parents in the workplace and action against irregular employment.
Support for parents
If employers decide to enter into smart working agreements with employees, priority must be given to parents of disabled children and mothers within the three years following their maternity leave.
Pregnant employees are now allowed to stay at work until the ninth month of pregnancy with prior authorisation of their gynaecologist and the competent doctor. This means they can take all of their mandatory maternity leave of five months in full after the birth. Before this legislative change, pregnant employees had to refrain from working two months before the birth (or at least one month before the birth, if authorised).
Mandatory paid paternity leave is now extended from the previous four days to five days: it can be taken during the first five months following the child’s birth.
The bonus provided to employees for enrolling children in nursery has been increased to EUR 1500 for 2019.
The fight against irregular employment
Sanctions for breach of social security legislation have been increased as follows:
A 20% increase on the previous level of fine for breaches of provisions relating to irregular work, temporary agency work, secondment and working time.
10% increase for breaches of health and safety provisions.
20% increase for breach of other provisions to be determined by a subsequent decree.
For repeated breaches of the mentioned provisions during the previous three years, these sanctions are doubled.
Staff representation following the social elections of 12 March 2019
The law of 23 July 2015 reforming social dialogue within companies provides that new provisions will come into force from the date of the next elections of staff delegations that will take place on 12 March 2019. These relate to: modification of the staff representation structure in the company: removal of establishment delegations, divisional delegations and delegations of young employees, in favour of the creation of a single staff delegation at company level;
creation of a delegation at the level of the economic and social entity;
abolition of the Joint Works Council;
specific competences assigned to the staff delegation in companies of 150 employees and more (e.g. information and consultation on technical, economic and financial matters, participation in certain company decisions);
the functioning of the staff delegation.
Strengthened preferential rights for part-time employees from 1 January 2019
In accordance with The Norwegian Working Environment Act (‘WEA’), part-time employees have the right to increase their working hours within their position, rather than the employer hiring a new employee. This is dependent upon the employee being eligible for the position and it being possible to implement without significant disadvantage to the employer.
In a decision by the Supreme Court in 2016, it was decided that part-time employees did not have the right to exercise preferential rights to only part or a share of a vacant position. This decision departed from a former long-observed practice. For the purpose of the preferential right, section 14-3 (1) of the WEA is now amended to make it clear that part-time employees may have preferential rights to only part or a share of a vacant position. Also, in these cases the preferential right will be conditional upon it being possible to implement this change without significant disadvantage to the employer. The fact that the employer is left with a position for which may be difficult to recruit qualified applicants may constitute such a significant disadvantage. This could also be the case if the implementation of preferential rights to only part of a position means that the business has more, and not fewer, part-time employees.
The amendment entered into force on 1 January 2019.
Conditions for mandatory retirement
Collective bargaining agreements in Spain can now include clauses allowing for termination of an employment contract once the worker has reached the legal retirement age established in Social Security regulations, provided the following requirements are met:
The worker affected by termination of the employment contract must comply with the requirements set out in social security regulations to be entitled to receive 100% of the ordinary contributory retirement pension. The measure must be linked to coherent employment policy objectives as expressed in the collective bargaining agreement, for example, improving employment stability by transforming temporary contracts into permanent contracts, hiring new workers, generational change or any other objectives aimed at improving the quality of work.
New legislation to reduce the gender pay gap
New legislation to reduce the gender pay gap was proposed and passed the Parliament in December 2018. Employers of at least 100 employees will be obliged to make an internal analysis regarding equal pay for equal work every four years. This analysis must then be submitted to an independent review. Within one year from the review, the results of the analysis must be communicated in writing to the staff or, if the company is listed on a stock exchange, included in the annual report. If and when the new law will enter into force has not yet been determined.
Gender pay gap reporting by companies with 250 or more employees was introduced last year, and the second set of reports is due by April 2019.
In a related move, the Government has introduced CEO pay reporting, requiring directors of a UK-listed company with 250 or more employees to report annually on the difference in pay between their CEO and average workers. The first reports will be due in 2020.
In addition, the Government launched a consultation on ethnicity pay reporting, in light of a recommendation in the 2017 report ‘Race in the Workplace’ and statistics indicating that there is a pay gap between many ethnic minority workers and white workers. The position is complex (with workers from some ethnic groups earning more than white workers), and there are also issues around the reliability of statistics based on small sample sizes and how to classify ethnic groups. The consultation looks in particular at the sort of information that employers should be required to publish. It seems likely that some kind of ethnicity pay reporting will be introduced this year, but the nature and extent of this obligation are not yet clear.
Good Work Plan
The Government has responded to recommendations on employment status made in the independent Taylor Review of employment practices (published in July 2017), in a document called the ‘Good Work Plan’.
The Government has made a number of proposals for employment law reform in the Good Work Plan in response to the Taylor Review, which are primarily designed to help those with non-standard or variable contracts. There is to be a new right to request a more predictable and stable contract, and a permitted break in service for the purpose of continuous employment rights is to increase from one to four weeks.
To help with enforcement of employment rights, the Government is planning to introduce a ‘name and shame’ scheme for employers who fail to pay Employment Tribunal awards, linked to the current penalty scheme. From 6 April 2019, the limit on financial penalties which can be imposed by an Employment Tribunal for aggravated breaches of the law by employers will be increased from GBP 5,000 to 20,000, and there are plans for new sanctions in respect of repeated breaches by the same employer.
Contributing Ius Laboris member firms and authors include:
Austria – Birgit Vogt Majarek and Sarah Lurf of Schima Mayer Starlinger
Belgium – Sophie Claes, Chris Engels and Inger Verhelst of Claeys & Engels
Denmark – Yvonne Frederiksen of Norrbom Vinding
France – Jean-Benoît Cottin of Capstan Avocats
Italy – Valeria Morosini of Toffoletto De Luca Tamajo & Soci
Luxembourg – Lorraine Chéry and Dorothée David of Castegnaro
Norway – Katarina Buzatu of Hjort
Spain – Iñigo Sagardoy de Simón and Gisella Alvarado of Sagardoy Abogados
Switzerland – Roberta Papa of Blesi & Papa
UK – Michael Burd of Lewis Silkin LLP
THIS UPDATE PROVIDES SUMMARY INFORMATION AND COMMENT ON THE SUBJECT AREAS COVERED. EMPLOYMENT LAW IS SUBJECT TO CONSTANT CHANGE EITHER BY STATUTE OR BY INTERPRETATION BY THE COURTS. WHILE EVERY CARE HAS BEEN TAKEN IN COMPILING THIS INFORMATION, WE CANNOT BE HELD RESPONSIBLE FOR ANY ERRORS OR OMISSIONS. SPECIALIST LEGAL ADVICE MUST BE TAKEN ON ANY LEGAL ISSUES THAT MAY ARISE BEFORE EMBARKING UPON ANY FORMAL COURSE OF ACTION.