Asia Pacific Employment Law Forecast - FEBRUARY 2021 - DLA Piper
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Asia Pacific
Employment Law Forecast
FEBRUARY 2021
ASIA PACIFIC EMPLOYMENT LAW FORECAST 2021 Contents Australia 3 China 3 Hong Kong 4 India 5 Indonesia 7 Japan 8 Malaysia 9 New Zealand 10 Singapore 11 South Korea 12 Taiwan 13 Thailand 14 Vietnam 15 Asia Pacific Employment Team 16 About DLA Piper 17 About DLA Piper’s Employment Group 18 2
DLAPIPER.COM
Australia ECONOMIC CLIMATE
2021 is likely to see significant legislative change in • Notwithstanding Australia has returned to relative
Australia, following the introduction of the Australian normality towards the end of 2020, the economic
Government’s industrial reforms legislation, climate in Australia is more difficult than it has been in
the Fair Work Amendment (Supporting Australia’s Jobs and a number of years, with relatively high unemployment.
Economic Recover) Bill 2020 (Bill). The Bill will be heavily As such, we have seen employees become more
contested in Parliament and is unlikely to pass in its litigious and seemingly more likely to make a claim
current form. However, it is likely that there will be some for workers compensation. In addition, in this tight
form of change in the key areas it seeks to address. market we have seen, and expect to continue to see,
activity in enforcing post-employment restrictive
CASUAL EMPLOYEES covenants, particularly in the technology sector.
• The issue of casual/zero-hour employees will
continue to be a key area of focus, including the likely China
legislative regime. The Bill currently proposes the
SEXUAL HARASSMENT
inclusion of a definition of casual employment in the
• On May 28, 2020, the Civil Code (“Code”) was adopted
Fair Work Act 2009 (Cth) (Fair Work Act) for the first
and the Code came into effect on January 1, 2021.
time. A statutory definition would seek to clarify casual
The Code provides more clarity by setting out a clear
working arrangements and related entitlements. This
definition of sexual harassment and requires employers
follows ongoing media and judicial attention being
to take reasonable efforts to prevent sexual harassment
given to casual working arrangements and allegations
in the workplace. The Code also strengthens protections
of improper classification of employees as casuals.
on individuals’ privacy and personal information.
MODERN AWARDS TRADE SECRET INFRINGEMENT
• Compliance with modern awards will remain a • On September 10, 2020, the Supreme People’s Court
key area of focus as Australia continues to see released the Provisions on Several Issues Concerning
instances of widespread non-compliance, even the Application of Law in the Trial of Civil Cases on
amongst large and sophisticated employers. Trade Secret Infringement (“Provisions”). The Provisions
This will include ongoing regulatory action from the set forth stipulations on the objects of trade secret
Fair Work Ombudsman and the Bill also proposes protection, constitutive requirements, determination
the introduction of a new criminal offence for of torts, etc., which provides specific guidance for
dishonest and systematic wage underpayments enterprises to deal with disputes over trade secrets.
in response to such non-compliance.
JOBKEEPER FLEXIBILITIES “The quality of information
• Following from the lessons of COVID-19 and the
provided was excellent.
widespread move to working remotely during the
pandemic, the Bill proposes an extension of the The team was able to talk
existing JobKeeper flexibilities in the Fair Work Act
through information with
which were introduced as a result of the COVID-19
pandemic to allow employers to continue to give real-world examples and
‘flexible work directions’ to certain employees.
would not be pressured
This is part of a broader shift happening across the
entire workforce as we see employers down-sizing into giving an answer
office space and employees seeking to continue
that I wanted to hear.
remote-working and flexible working arrangements.
The subject was so complex
CLASS ACTIONS
but the team guided
• Given the impacts of COVID-19, we expect to see
a return to growth in employment-related class us through each stage
actions in 2021, including in respect of modern award
exceptionally well.”
non-compliance and misclassification of employees as
casual employees. — Chambers 2020: Employment
(China including Hong Kong)
3ASIA PACIFIC EMPLOYMENT LAW FORECAST 2021
SOCIAL INSURANCE ANTI-SEXUAL HARASSMENT UNIT ESTABLISHED
• Starting from November 2020, social insurance • The Equal Opportunities Commission has established
premiums for enterprise employees will be collected by an Anti-Sexual Harassment Unit (ASHU), with a
the Tax bureau (instead of the Human Resources and key objective being to provide victims of sexual
Social Security Bureau) in multiple regions in China. harassment with free advice to allow them to explore
available options and decide on next steps. The ASHU
• On November 26, 2020, Guangdong Department
is also conducting a review of the current legal regime
of Human Resources and Social Security and
with a view to recommending legislative changes and
Public Security Department released the Measures
improvements in protection.
of Guangdong Province on Investigation and
Punishment of Violations of Social Insurance Funds MATERNITY LEAVE INCREASE
(“Measures”). The Measures stipulate eight situations • On 11 December 2020, the Employment
that will be regarded as insurance fraud and clarifies (Amendment) Ordinance 2020 came into effect which
that third party social insurance payments are increased statutory maternity leave from 10 weeks
prohibited. According to Article 29, when there to 14 weeks. Statutory maternity leave pay for these
exists a forged wage ledger, certification material four additional weeks will be maintained at 80% of the
or fictitious labor relationship, which causes the employee’s average daily wages, but subject to a cap
declared payment base and number of people to of HKD 80,000 per employee. Employers may apply
be inconsistent with the actual situation, it should to the government for reimbursement of the cost of
be transferred to the tax authority for verification or these additional four weeks, although the details of
reported to the government. this reimbursement scheme will only be disclosed in
the first half of 2021.
Hong Kong
MINIMUM WAGE FREEZE
UPDATES TO ANTI-DISCRIMINATION LEGISLATION
• On 2 February 2021, the government adopted
• On 19 June 2020, the Discrimination Legislation
the recommendation of the Minimum Wage
(Miscellaneous Amendments) Ordinance 2020
Commission to maintain the statutory minimum
was passed which expanded anti-discrimination
wage rate at HKD37.5 (which is the first time the
legislation in a number of areas including: unlawful
statutory minimum wage was frozen since being
harassment to include “workplace participants” and
introduced in 2011). The next minimum wage
interns/volunteers; race discrimination to cover
recommendation report is required to be submitted
race that is imputed and not a person’s actual race;
by 31 October 2022.
race discrimination to include a person’s “associate”;
disability and racial harassment to apply to service
ABOLISHMENT OF MPF OFFSETTING MECHANISM
providers in the course of serving customers of
• The government had previously announced it would
goods, facilities or services; and repealing the
abolish the ability for employers to offset statutory
provision that damages will not be awarded for
severance or long service payments by the value
indirect discrimination if the respondent proves it had
of contributions they have made to an employee’s
no intention of treating the claimant unfavourably.
The extension of legislation to expressly cover
“workplace participants” has the potential to cause
additional risks and liabilities for employers with “I have been very happy with
employees who are working remotely in co-working
[DLA Piper’s] client service, from
spaces and/or who engage interns and volunteers.
It will therefore be important for employers to ensure associate to partner level,” reports one
that appropriate policies, measures and training are
satisfied client, who adds: “They are
extended to all workplace participants (such as interns
and volunteers), and that workplace participants always responsive and one of their
are instructed to abide by applicable policies even
strengths is they have resources, so we
when working outside the office in order to minimize
vicarious liability. don’t have to rely on a single contact.”
— Chambers 2021: Employment
(China including Hong Kong)
4DLAPIPER.COM
Mandatory Provident Fund or other occupational India
retirement scheme. The government has announced Introduction of four labour codes
in their December 2020 policy address that they • The Indian government is consolidating 29 existing
are currently in the process of drafting the bill central labour laws into 4 labour codes, namely Code
amendments and in the policy briefing meeting of the on Wages, 2019; Industrial Relations Code, 2020;
Panel on Manpower (held on 7 January 2021), it was Code on Social Security, 2020; and Occupational
stated that the government intends to propose its bill Safety, Health and Working Conditions Code,
amendments in the next legislative year (i.e. between 2020 (collectively, Labour Codes) for governing
October 2021 – July 2022). various issues including conditions of employment,
social security, employee health, safety and welfare,
ANTI-DISCRIMINATION AGAINST industrial and labour disputes, payment of wages.
BREASTFEEDING WOMEN The Labour Codes have already been passed by the
• The Sex Discrimination Ordinance will be amended Parliament and have received President’s assent.
such that with effect from 19 June 2021, breastfeeding The codes are likely to come into effect on 1 April 2021.
will be a protected attribute for discrimination
• The Labour Codes introduce a uniform definition of
purposes. The protection applies not only to the act of
‘wages’ which will cover provisions on gratuity and
breastfeeding and expressing milk to feed a child, but
provident fund computation, rules around deduction,
also to being a person who feeds her child with breast
etc. This definition can be bifurcated into 3 parts –
milk (i.e. the status of being a breastfeeding mother).
(a) a substantive part, as per which all guaranteed
The amendment means that treating a woman less
salary components will be considered as wages; (b)
favourably on the grounds that she is breastfeeding
an inclusion list setting out specific items which will
as compared to a woman who is not breastfeeding,
certainly be include as ‘wages’ ; and (c) an exclusion
either directly or indirectly (and without justification),
list, which sets out certain items that will be excluded
or victimizing her on this basis, will be considered
from ‘wages’. The new definition will also have 2
discrimination. The positive discrimination measures
provisions which if met, will automatically deem
that currently exist for sex, marital status and
a portion of the value of exclusions or the value
pregnant persons (i.e. promoting equal opportunities
of remuneration paid in kind as ‘wages’. The new
which is not considered unlawful) will also be
definition of ‘wages’ will have a significant cost impact
extended to women who are breastfeeding. There are
on organisations since the computation of provident
currently no plans to introduce a positive obligation
fund and gratuity payment will no longer be limited to
on employers to provide lactation breaks but we
basic wages.
anticipate further practical guidance will be published
ahead of the commencement date. • The Labour Codes will introduce a 5-year limitation
period for recovery of provident fund dues by the PF
STATUTORY HOLIDAY INCREASE authorities. Under the existing regime, PF authorities
• The Government announced that it intends to could potentially initiate proceedings for shortfalls
increase the number of Hong Kong statutory holidays in payments going back 10-15 years. This is a
from 12 to 17 days. Under the current proposal, welcome change.
statutory holiday entitlement will be increased by one
• Minimum wages for specific types of industries/
day every two years (commencing in 2022) until it
employments will be abolished and instead, the
reaches 17 days. The proposal is to be discussed in
central government will fix a ‘floor wage’ (which may
2021, with a view towards introducing legislation by
vary based on geographic area). State Governments
the end of 2021. We will provide further updates as
will then be required to fix a minimum wage that is at
the year progresses.
least equal to or higher than the floor wages.
5ASIA PACIFIC EMPLOYMENT LAW FORECAST 2021
• The Labour Codes will increase the applicability of Haryana State Employment of Local
the provisions on engagement of contract labour Candidates Bill, 2020
such that the contract labour related obligations will • The Haryana State Employment of Local Candidates
apply to more establishments. The Labour Codes will Bill, 2020 (Local Candidates Bill) is a state-specific
also prohibit, at a pan-India level, the engagement of law which provides for reservation for local candidates
contract labour in an establishment’s ‘core activities’ in private companies, partnership firms, limited
i.e., activities for which the establishment has been liability partnerships, etc. employing 10 or more
setup, including its essential and necessary activities. persons in the state of Haryana.
The definition of contract labour will be narrower
• Under the Local Candidates Bill, employers will be
andupdated to only cover arrangements where
required to employ 75% local candidates (meaning
manpower/workers are deployed after making
those domiciled in Haryana) in posts where the
special recruitments for the client. While the Labour
gross monthly salary is INR 50,000 (USD 700) or
Codes are yet to come into effect, some state
less, or such other amount that may be notified by
governments like Bihar, Karnataka, Gujarat, Punjab,
the state government. Non-compliance with this
Madhya Pradesh and Goa have already increased
reservation obligation could be penalized with a
theapplicability of the CLRA (for both, principal
monetary fine in the range between INR 50,000
employers and contractors/vendors).
to INR 200,000 (USD 700 to USD 2,800) in the first
• All industrial establishments (which includes instance. In order to be eligible for a reservation, a
commercial establishments) having 300 or more local candidate will be required to register herself/
workers will now need to obtain certified standing himself on a designated government portal.
order (i.e. service rules) after a consultation process
• Employers may claim an exemption from the
with the workers.
reservation requirement if adequate local candidates
• The Labour Codes will impose an obligation on of the required skill, qualification or proficiency are
employers with 20 or more workers to constitute a unavailable. The Local Candidates Bill will also require
grievance redressal committee (“GRC”) for resolution private employers to (a) register every employee
of individual grievances. The GRC can have up earning a gross monthly salary of INR 50,000 or less
to 10 members and will need to have an equal on the government portal; and (b) submit a quarterly
representation from the workers. report with details of the local candidates employed
by them during that quarter.
• Employees on fixed term contracts will now be eligible
for gratuity payments even if the qualifying period • The Haryana State Legislative Assembly passed the
of 5 continuous years of service is not met. Hence, Local Candidates Bill on 5 November 2020. The Local
organizations will have to be mindful of the increased Candidates bill is yet to receive the approval of
costs associated with engagement of fixed term the Governor after which it will come into effect
employees (FTE), specifically, in case of international on a date notified by the State government in the
deputation and secondments (where FTE models are Official Gazette.
popularly adopted).
The Karnataka Shops and Commercial
• The Labour Codes will significantly increase the
Establishments (Second Amendment) Bill, 2020
penalties for non-compliance. Penalties under the
• The Karnataka Shops and Commercial Establishments
Labour Codes will be in range of INR 50,000 to
(Second Amendment) Bill 2020 (Karnataka S&E Bill)
INR 1,000,000 (USD 700 to USD 13,500). The Labour
proposes to increase this carry-forward limit of
Codes will also introduce provisions for compounding
unutilized privilege leaves to 45 days instead of the
of offenses (subject to payment of prescribed fine).
existing limit of 30 days. The Karnataka S&E Bill is yet
to come into effect.
6DLAPIPER.COM
The Karnataka Shops and Commercial provisions under the Job Creation Law, it is likely that
Establishments (Amendment) Act, 2020 these adjustments may only be possible (and most
• The Karnataka State Government amended the likely only prudent) once the anticipated government
Karnataka S&E Act on 19 October 2020 to remove the regulations on the amended provisions of the Job
prohibition on employment of women at night. As per Creation Law have been issued.
this amendment, a female employee is allowed to
• The Job Creation Law may simplify the permit
work in a ‘commercial establishment’ at night subject
requirements for foreign nationals to work in
to fulfilment of the prescribed conditions – like,
Indonesia by removing the requirement to obtain a
obtaining written consent of a female employee to
Notification (or work permit/IMTA).
work at night, providing free GPS-enabled and secure
transport facilities to-and-from the female employee’s • The Job Creation Law revokes the provisions on
residence and workplace, provision of security guards the term of a contract, its extension and renewal.
at the workplace, and separate washroom, dispensary However, it states that the term of a contract, the
facilities, etc. Hence, all commercial establishments types and nature of the work, and limits on the
(and not just those establishments in the IT or ITeS extension of a fixed term contract, will be regulated
sector) are permitted to employ women at night, further under a separate government regulation.
without the requirement to obtain/apply for any
• Completion of a job is now also a ground to
exemption from the authorities.
terminate a fixed term contract. Further, there is now
• Non-compliance with the prescribed conditions could an added obligation for an employer to pay employee
lead to cancellation of the registration certificate issued compensation (to be regulated under a government
to the establishment under the Karnataka S&E Act. regulation) upon a fixed term contract ending due
to the completion of a certain job or the expiry of
Increased applicability of the Factories Act, 1948 its term.
• The state governments of Bihar, Himachal Pradesh,
• The restrictions on the activities and manpower that
Assam, Punjab, Haryana, Karnataka, Madhya Pradesh,
can be outsourced have been removed. In addition,
Gujarat and Goa have increased applicability of the
the possible automatic transfer of employment
Factories Act to manufacturing processes functioning
for failure to follow the outsourcing rules no
with the aid of power to 20 or more workers, and to
longer applies.
manufacturing processes functioning without the aid
of power to 40 or more workers. The Factories Act • A government regulation will be issued on the
primarily governs the working conditions and health protection of employees performing outsourced
and safety obligations of employers vis-à-vis the work. It is expected that the Indonesian Government
factory employees. or the Ministry of Manpower will issue a regulation
on whether the current implementing regulation on
Indonesia outsourcing, Minister of Manpower Regulation No. 19
of 2012, will remain in effect.
Job Creation Law
• The Omnibus Law Bill, enacted as Law No. 11 of 2020 • The total hours of overtime work that employees may
on Job Creation (“Job Creation Law”) was signed by be asked to perform has been increased. Overtime
the Indonesia President on 2 November 2020. The Job can be performed for up to 4 hours a day or up to
Creation Law amends various regulations on licensing 18 hours a week. According to the Job Creation Law,
procedures, investment requirements, manpower, a government regulation on overtime pay and hours
immigration, export-import requirements, land will be issued.
procurement and special economic zones.
• Now, only the Governor can determine the provincial
• The Job Creation Law changes the current practice and municipal minimum wage, but the municipal
and understanding of Indonesian employment minimum wage (if applicable) must be higher than
matters and companies may have to restructure or the provincial minimum wage. The Job Creation
change their approach on their manpower-related Law also removes the relevant provision on sectoral
actions (particularly, related to termination, Company minimum wage and therefore it is expected that the
Regulations, employment agreement or Collective minimum wage determined by the Governor will
Labor Agreement as applicable). However, given the apply to all sectors. Also, the minimum wage only
degree of uncertainty and the potential for multiple applies to employees working for less than one year.
competing interpretations on the manpower related
7ASIA PACIFIC EMPLOYMENT LAW FORECAST 2021
It is expected that there will be a new implementing • The Act on Stabilization of Employment of Elderly
regulation which revokes the current regulation on Persons will be amended on 1st April 2021, and a new
the minimum wage. obligation to “make efforts” to secure employment for
the elderly will be imposed. Although this obligation
• The Job Creation Law now sets out the general
is only an effort obligation, the MHLW encourages
procedure for the termination of employees
the fulfillment of the obligation by providing special
and clarifies that the industrial relations dispute
subsidies to companies with employees older than
settlement procedure must generally be followed.
65 years old. There are some subsidies that may
• 3 new grounds for the termination of permanent be available to help with costs but the amounts are
employees have been introduced. Further procedures currently not very significant.
on the termination of an employment relationship will
• Equal pay for equal work will likely continue to be a
be issued in a government regulation.
significant issue for Japan. In Japan, employers often
• The Job Creation Law introduces a single severance have a mix of part-time, full-time, fixed-term and
package formula (for whatever the ground of indefinite term employees. Often, the employees
termination of permanent employees). The amount of have different benefits and allowances available to
the severance payment ill depend on the employees’ them based on their classification. Now, employers
years of service. A government regulation will be are required to provide equal pay and benefits for
issued on the new severance package formula. employees who do substantially the same work
unless there is a reasonable basis for the different
• New violations have also been introduced which may
treatment. The Supreme Court of Japan issued
attract criminal sanctions.
several judgements relating to related issues in late
2020 and we need to watch the situations carefully
Japan
going forward.
• The system has been updated to make it easier for
employees to take certain child care leave. The Act • Guideline regarding side jobs was revised in
on the Welfare of Workers Who Take Care of Children September 2020. This clarifies how to properly
or Other Family Members Including Child Care and manage working hours of employees who work at two
Family Care Leave was amended effective 1st January or more employers (e.g. even if the employee works
2021 to allow employees to take certain child care at different employers, limitation of overtime work of
leave on an hourly basis, instead of one-day or 100 hours/month shall be observed by including all of
half-day increments. However, child care leave will the overtime work at all the employers.)
continue to be unpaid leave.
• It is expected that, effective 1st March 2021,
employers in Japan will be required to have 2.3% of
“[The DLA Piper team] always thinks
their workforce include employees with a disability
(up from 2.2%). This will apply to employers with 43.5 about potential issues and pays
employees (part time employees are counted as 0.5
attention to detail,” client adding:
employees). Employers who are subject to the rule are
required to report their employment status of people “They provide very practical and
with disabilities to Hello Work (the public employment
comprehensive advice in a very short
security office) on 1st June every year. Employers
who fail to meet the requirement will first be subject time, to help us to solve issues in a
to administrative guidance from the Ministry of
simple way.”
Health Labor and Welfare. If they do not follow such
guidance in the time frame required, the name of the — Chambers 2020: Employment (Japan)
employer will be made public.
8DLAPIPER.COM
• The MHLW issued a guideline regarding holding Malaysia
safety and sanitation committee meetings in an online • Major changes were made to Industrial Court
format in August 2020. The guideline says that the process and appeals pursuant to the Industrial
device used shall be (i) easily accessible for committee Relations (Amendment) Act 2020. The Industrial
members; (ii) transmission of video/voice is stable; Relations (Amendment) Act 2020 (“Amendment Act”)
and (iii) counter measures to prevent leakage of came into force partially on 1 January 2021. The key
personal information or inappropriate access are to amendments that are in effect are as follows:
be taken. It indicates that the committee meetings
• Either party (employer/employee) may now be
should, in principle, be held by a video conference
represented by any person of their choice during
system. If it will be held by voice conference or chat
the conciliation process at the Industrial Relations
system, measures need to be taken to: (i) enable
Department, subject to the Director General’s
the necessary documents to be properly referred
permission. However, representation by lawyers is
to and; (ii) allow the members to mutually and
still prohibited.
instantaneously exchange their opinion. Email (i.e.
non-instantaneous exchange) is not excluded, but • The discretion of the Minister of Human Resources
the guideline provides that if such a system is used, to refer unfair dismissal complaints has now been
it shall satisfy the following (a) enough time should removed. Pursuant to the Amendment Act, the
be provided so that the members can confirm the referral is made by the Director General, and the
relevant documents; (b) questions or comments referral is made automatically if the matter cannot
from the members can be swiftly shared with other be settled at the conciliation stage. This means
members and they can exchange their opinion that the filter mechanism whereby frivolous claims
smoothly; (c) if a member does not show any opinion, would not be referred to the Industrial Court no
the committee should confirm with the member that longer exists.
he/she confirmed the documents and whether they
• The Industrial Court can now continue with the
have any intention to submit his/her opinion; and
hearing of an unfair dismissal claim following the
(d) take necessary measures to prevent difficulty in
death of the claimant. Prior to the amendment, the
discussions (e.g. appointing a facilitator/liaison person
claim (which was deemed a personal action) would
to adjust and moderate the discussion to prevent
have been struck out upon the claimant’s death.
difficulty by receiving many different opinions from
the members.) • The Amendment Act also now provides parties with
a direct right of appeal to the High Court. Parties
previously were only able to challenge Industrial
Court decisions via the judicial review process.
An appeal must be made within 14 days of the
Industrial Court’s granting of an award.
9ASIA PACIFIC EMPLOYMENT LAW FORECAST 2021
New Zealand WorkSafe
• In June 2020, an independent report into WorkSafe-
Minimum Wage Increase
New Zealand’s workplace health and safety regulator-
• The Government has committed to increasing
was released under the Official Information Act.
minimum wage on 1 April 2021 from NZDUSD18.90
The mid-2019 review found that the regulator’s
to NZDUSD20.00.
methods were “outdated”, that there was a shortage
of frontline investigators, detectives had a lack of
Pay Equity
training and supervision, an absence of a national
• The Pay Equity Amendment Act came into force in
quality assurance framework, and some poor practice
late 2020, and unions have moved quickly to lodge
in case management.
pay claims under it. This provides a more accessible
pathway to raise and review claims of systemic pay Classification issues
undervaluation in female-dominated occupations, and • The Government has indicated that it may look to
the process requires employers to work with unions extend minimum employment entitlements to cover a
and employees to assess if a claim is ‘arguable’ as an ‘dependent contractor’ as a third category of worker,
initial step. alongside employees and contractors. This would
cover workers who operate their own business but
Holidays Act have little control over their day-to-day work and are
Sick leave heavily dependent on one business for a significant
• The Government introduced the Holidays (Increasing majority of their income.
Sick Leave) Amendment Bill on 1 December 2020,
which proposes to double the current sick leave Fair Pay Agreements
entitlement from five to ten days per year. The cap • The Labour Government has committed to
on carrying sick leave over remains at 20 days in introducing a framework allowing unions, employers
the proposed legislation. The Bill has passed its and the Employment Relations Authority to
first reading and is expected to pass in mid-2021. collaboratively produce sector-specific Fair Pay
The increased entitlement will affect all employees once Agreements that specify a range of minimum
they have completed six months’ continuous service. conditions. These would be comparable to Modern
Awards in the Australian jurisdiction.
Discretionary bonuses
• In April 2020, the Employment Court decided
Whistleblowing
in Metropolitan Glass & Glazing Limited v Labour
• The Protected Disclosures (Protection of
Inspector, Ministry of Business and Innovation and
Whistleblowers) Bill is also expected to make its way
Employment [2020] NZEmpC 39 that a “discretionary
through Parliament in 2021, replacing the current
bonus” linked to performance and/or KPIs will not
Protected Disclosures Act 2000, clarifying the
be deemed a “discretionary payment” under the
definition of serious wrongdoing and strengthening
definition of gross earnings (contained in the Holidays
protections for disclosers.
Act 2003), and must therefore be included in holiday
pay calculations. To be deemed truly “discretionary”,
a payment must be gratuitous, such as a Christmas
bonus paid at the employer’s initiative.
10DLAPIPER.COM
Singapore • On 3 March 2020, the MOM announced several
• 2021 is unlikely to see significant legislative change changes relating to the raising of the minimum
in Singapore. qualifying salary for a foreigner to be eligible for
the employment pass, the expansion of the job
• It is however anticipated that the Ministry of
advertising requirement, and raising of the local
Manpower (the “MOM”), together with its tripartite
qualifying salary threshold for the purposes of
partners (i.e. Singapore National Employers
calculating foreign worker quota. It was then
Federation and the National Trade Union Congress) or
announced in August 2020 that further changes
otherwise, will continue to issue a significant number
would be made to the regime. This included
of advisories and guidelines particularly in connection
increasing the minimum qualifying salary for both the
with the Covid-19 crisis. In 2020:
employment pass and S pass from 1 September 2020.
• updates were made to the Tripartite Advisory on Further, from 1 October 2020, a key change was the
Managing Excess Manpower and Responsible updating of the Fair Consideration Framework which
Retrenchment to provide employers with clearer resulted in the tightening of work pass requirements.
guidance on carrying out a retrenchment exercise The key change resulted in employers being required
responsibly, including the ability for employers to to advertise positions for both employment passes
reduce working periods and to tap on Government and S passes for at least 28 days. Employers must
support to pay salaries; ensure that they interview all applicants and conclude
independently that the foreign applicant is the
• the Requirements for Safe Management Measures
best candidate for the job, prior to applying for the
at the workplace was issued in May 2020 and
relevant employment or S Pass. Employers have been
has been updated regularly, which provides
cautioned that this cannot be a tick the box exercise.
guidelines for companies to adhere to in permitting
In addition, with effect from 23 December 2020,
employees to return to the workplace; and
all work pass holders, excluding foreign domestic
• the Tripartite advisory on mental well-being at workers, have to update the MOM on their new
workplaces was issued in November 2020 and residential address or mobile number within five days
provides recommendations to be implemented of any change, as part of their work pass conditions
by employers to prevent work stress from under the Employment of Foreign Manpower (Work
compromising well-being and productivity in the Passes) Regulations.
organisation.
• For 2021, the National Wages Council (the “NWC”)
• From 1 September 2020, the majority of the has issued the 2020/2021 Supplementary Guidelines
provisions of the Work Injury Compensation Act 2019 which provides employers with updated guidelines
which had been passed in 2019 came into force, to sustain businesses and save jobs under these
which included inter alia: challenging circumstances, and will apply to the
period from 1 November 2020 to 30 June 2021.
• an increase in compensation and medical
Of key importance is that the NWC reiterates its
expenses limits;
recommendation that employers give special
• expanded mandatory insurance coverage to consideration to low-wage workers and recommends
non-manual employees, regardless of where that for employers implementing a policy of wage
they work; reduction, they should instead implement a wage
freeze for low-wage workers earning a basic monthly
• expanding the scope of compensation to include
wage of up to $1,400.
light duties; and
• From 1 January 2021, foreign nationals in the
• requiring compulsory reporting for any instance
technology sector in Singapore can apply for a Tech.
of medical leave or light duties issued for
Pass administered by the Singapore Economic
work accidents.
Development Board (“EDB”), subject to meeting the
relevant eligibility criteria. According to the EDB,
The implementation of the regulatory regime for
“Tech.Pass is a visa that allows established tech
insurers where only insurers designated by the MOM
entrepreneurs, leaders or technical experts from around
can sell work injury compensation insurance policies
the world to come to Singapore to perform frontier and
was deferred to 1 January 2021.
disruptive innovations”.
11ASIA PACIFIC EMPLOYMENT LAW FORECAST 2021
• Although Singapore has largely reverted to business • Starting from July 1, 2021, the weekly maximum
as usual having exited our circuit breaker period working hours of 52 hours, inclusive of overtime and
since June 2020, it is anticipated that 2021 will holiday work, will be expanded to private companies
continue to be a challenging year for employees regularly employing 5 to 49 employees (Article 2(1)7).
with further retrenchments contemplated. We
• Starting from January 1, 2021, the holidays and
anticipate employees bringing claims or complaints
substitute holidays of government offices under the
to the Tripartite Alliance for Fair and Progressive
Regulations on Holidays of Government Offices will
Employment, Tripartite Alliance for Dispute
be applicable as paid holidays for private companies
Management or the employment claims tribunal
regularly employing 30 to 299 employees (this
in the event that they do not receive satisfactory
requirement already applied to employers with 300
severance packages.
or more employees). To substitute the prescribed
holidays with other working days, a company is
South Korea
required to reach a written agreement with the
Amendments to the Labor Standards Act (“LSA”) employee representative (Article 55(2)).
• Companies may now stipulate and deliver working
conditions using electronic documents (Article 17(2) Amendments to the Equal Employment Opportunity
and Article 67(3)/to be amended and enforced as of and Work-Family Balance Assistance Act/to be
January 5, 2021). enforced as of January 1, 2021)
• Starting from January 1, 2021, for private companies
• Companies may now omit preparing a list of
regularly employing 30 to 299 employees, if an
employees for daily workers employed for less than
employee applies for a reduction of working hours
30 days (a proviso to Article 41(1) to be amended and
for the following reasons, the employer must grant
enforced as of January 5, 2021).
it: to take care of his/her family or his/her own
• Companies may now introduce a flexible working health, to prepare for his/her retirement (for an
hour system with a unit period of up to six months employee who is 55 years or older), and/or to allow
(the previous limit was three months) (Article 51-2 an employee to pursue his/her studies. The working
and Article 116(1)3 to be newly established/to be hour reduction may be between 15 to 30 working
amended and enforced as of January 5, 2021). hours. The maximum period for the reduced working
hour schedule is one year, and based on reasonable
• The maximum measurement period for a selective
grounds (excluding study purposes), the period may
working hour system has been extended to three
be extended by up to two years (Article 22-3).
months, but this only applies to employees engaged
in research of new products or new technologies. If • Starting from December 8, 2020, a leave of absence
a measurement period exceeding one month is set for childcare may be split into two periods of leave
(by way of the required written agreement with the (Article 19-4(1)).
employee representative), it is required to provide a
rest period for 11 consecutive hours between working Minimum hourly wage increased to KRW 8,720 in
days and to pay an additional allowance for hours 2021 (to be enforced as of January 1, 2021)
exceeding 40 hours per week based on a monthly • The minimum hourly wage in 2021 is KRW 8,720
average (Article 52/to be amended and enforced as of (representing a 1.5% increase from 2020). Certain
January 5, 2021). portions of regular bonuses and cash welfare benefits
may be included in the calculation of minimum wage.
• Subject to the employees’ consent and approval by
the Minister of Employment and Labor, employers
must now take appropriate measures for certain
employees who have worked overtime under special
circumstances. This may include implementing a
medical check-up or granting a rest period, in order
to protect the employee’s health and well-being
(Article 53(7)/to be amended and enforced as of
January 5, 2021).
12DLAPIPER.COM
Amendment to the Employment Insurance Act enterprise, and who provides service for the business,
• Certain artists as prescribed by the Employment may be insured upon the approval of KCOMWEL
Insurance Act, may now receive job-seeking (Article 31(1) and Article 41-2 to be newly established,
(unemployment) benefits in the case of an involuntary Article 124(2)/to be enforced as of June 9, 2021).
job change upon obtaining employment insurance
and satisfaction of certain requirements. Furthermore, Amendment to the Wage Claim Guarantee Act
if an insured artist cannot provide services due to • Salaries during the maternity leave period are included
childbirth, or miscarriage or stillbirth, she can receive in the scope of substitute payment, and if necessary,
maternity benefits, etc. (Article 77-2, 3, and 4 to be employees (including retirees) can apply for loans
newly established/to be enforced as of July 1, 2021). through the MOEL for the cost of living, and the
accounts to which the substitute payment has been
Amendments to the Act on the Collection of paid can be protected from seizure. (Article 2(3), Article
Insurance Premiums, Etc. for Employment Insurance 7(2)3., Article 7-2, Article 11-2, Article 14, Article 19,
and Industrial Accident Compensation Insurance and Article 23/to be enforced as of December 8, 2020).
• The law has been amended to temporarily operate
a special reporting period regarding industrial Taiwan
accident insurance of employees in special types of • Beginning January 1st, 2021, the basic monthly and
employment, and if such an employee reports a valid hourly salary rates have been raised to 24000TWD/
insurance relationship within a certain period, mo and 160 TWD/h respectively.
he/she may be exempted from payment of all or part
• With the implementation of the Middle-aged and
of the industrial accident compensation premiums,
Elderly Employment Promotion Act – Article Content –
etc. (Article 22-3 and Article 22-4/to be amended and
Laws & Regulations Database of The Republic of
enforced as of January 5, 2021).
China, persons aged 45-65 and those above 65 will
• Employers who have executed a service provision be afforded more protection from age discrimination,
contract with a service provider are required to insure provided with more employment stability, and the
the service provider via employment insurance. employment of these persons will be promoted.
Additionally, if a service provision platform business Employers who are found to be discriminating by age
operator executes a service provision platform will be fined.
contract with the business owner of a service
• Beginning January 1st, 2021, the Labor Insurance Act
provision business, he/she is required to report it to
has been amended to increase the general accident
the Korea Workers’ Compensation & Welfare Service
insurance rate by 11.5%. The included employment
(“KCOMWEL”), and to conduct withholding on the
insurance rate is 1%, so the general accident
employment insurance contributions of the service
insurance premium will be calculated at 10.5%.
provider and the service provision business owner
(Article 48-3 and 4 to be newly established/to be • The Taiwan Ministry of Economic Affairs and Ministry
enforced as of July 1, 2021). of Transportation and Communications have also
implemented some measures to aid the loss of jobs
Amendment to the Industrial Accident and income in multiple sectors to combat economic
Compensation Insurance Act downturns caused by the COVID-19 Pandemic.
• A person who received medical care benefits can
request confirmation from KCOMWEL on whether
his/her contribution is excluded from the scope of
the medical care benefits, and receive the overpaid
amount. Furthermore, a spouse (including a common
law spouse) or a relative closer than a first cousin
of the business owner of a small or medium-sized
13ASIA PACIFIC EMPLOYMENT LAW FORECAST 2021
Thailand • The employer shall notify the employee of the
health examination results within 7 days from
Health and Safety
the results becoming known to the employer.
• The Ministerial Regulation re: Prescription for
However, if it appears to be an adverse result to
Standard of Health Examination for Employees who
the employee’s health, the employer shall notify the
work with Risk Factors B.E. 2563 issued under the
employee of such adverse result within 3 days;
Occupational Safety, Health and Environment Act B.E.
2554 (2011) (“Ministerial Regulation”) was enacted • If it appears that the employee has any symptoms
in October 2020. or illness due to work with risk factors, the
employer shall arrange for the employee to receive
• According to the new Ministerial Regulation,
immediate medical treatment, and submit the
employers are subject to various provisions relating
results of health examination, including preventive
to the provision of ‘health examinations’ (as defined
measure, to the safety officer within 30 days from
in the Ministerial Regulation) in respect of any of their
the date the employer becomes aware of such
employees who ‘work with risk factors’. ‘Work with risk
symptom or illness; and
factors’ includes works relating to certain hazardous
chemicals, radiation and environments that may be • If there is sufficient medical evidence to illustrate
detrimental to health of employees. that the employee cannot continue his/her current
role relating to work with risk factors, the employer
• Pursuant to the Ministerial Regulation, employers
shall offer a change in role as deemed appropriate
are required to do the following:
by taking into account his/her health and safety.
• Arrange the first health examination for
the employee within 30 days from the date the Temporary Business Closure
employee commences his/her work and on a yearly • Other than force majeure, employers may now
basis thereafter; temporarily halt its business operation, whether
in whole or in part, due to a necessary event that
• If the nature of any particular work relating to
affects the operation of the employer and causes the
risk factors requires the health examination to be
employer to be unable to operate business as usual.
made within any particular period, the employer
The employer can notify the labour inspector of its
shall arrange the health examination according to
temporary business closure both in writing and via
such period;
electronic means.
• If there is any change to the employee’s work
with risk factors, the employer shall arrange the
health examination within 30 days from the date of
such change; “The timing and quality
• If any employee is absent from work for of [DLA Piper’s] responses
3 consecutive days due to injury or sickness,
are of the highest quality.
the employer shall request an opinion from a
certified physician or arrange the health examination The advice is considered
for such employee before his/her return to work;
and tailored to the specific
• The employer shall keep a health record for each
needs of our business,
employee which contains the details of the health
examination at the workplace for: (i) not less than which enables us to make
2 years after the end of employment so that it can
key decisions promptly
be inspected by the labour inspector at any time;
or (ii) for not less than 10 years after the end of and effectively.”
employment if the result of the health examination
— Chambers 2021: Employment
could lead to cancer due to the nature of work with
(Thailand)
risk factors. The employer must return such records
to the employee at the end of employment;
14DLAPIPER.COM
Vietnam • The new Labour Code has expanded the definition
A new Labour Code came into effect on 1 January 2021 of ‘labour contract’. Specifically, if the two parties
and whilst not all of the Decrees and Circulars to reach an agreement with some other name but
implement the new Labour Code have been issued, with contents setting out the paid work, salary,
there are various notable changes to previous labour management, executive operation administration and
law. Specifically, some notable amendments include: supervision by one party, then such agreement will be
deemed to be a labour contract;
• The contents of internal labour regulations will
• The new Labour Code provides new cases where an
now need to include the following additional items:
employer has the right to unilaterally terminate a
(a) prevention of sexual harassment in the workplace;
labour contract: (a) the employee has reached the
and the sequence and procedures for dealing
retirement age, except where there is some other
with a breach being an act of sexual harassment
agreement; (b) the employee arbitrarily leaves the
in the workplace; and (c) details of who is the
job without a satisfactory explanation for a period
person within the employer authorized to impose
of at least 5 consecutive working days (and in such
disciplinary penalties;
case, the employer is not required to provide advance
• An additional ground for applying dismissal as a form notice for unilateral termination of the labour contract
of labour discipline has been added under the new to the employee); or (c) the employee provided
Labour Code, whereby an employer may apply the untruthful information when entering into the labour
form of dismissal if an employee commits an act of contract and this fact adversely affected recruitment
sexual harassment at the workplace as defined in the of employees;
internal labour regulations;
• An employee, regardless of the term of labour
• It is specifically stated in the new Labour Code that contract, can unilaterally terminate a labor contract
extension of work permits may be granted but only without providing reasons, provided that he/she gives
on one occasion for a maximum of 2 years, whilst advance notice as required by law. In addition, an
under the old Labour Code there is no explicit limit employee also has the right to unilaterally terminate
on the number of extensions that can be granted. the labour contract without prior notice in certain
It will be interesting to see if this restriction will be cases provided at law (i.e. where the employee is
circumvented simply by changing the employee’s job abused, beaten, or subject to abusive/defamatory
title when an extension is required (i.e. effectively words or acts, or to acts adversely affecting the
applying for a new work permit rather than health, dignity and honour of the employee
an extension); committed by the employer; or is subject to labour
coercion; or the employee is sexually harassed in
• Under the new Labour Code, the organization
the workplace; or the employee has reached the
representing employees at the grass roots level
retirement age, unless the parties have some other
includes both grass roots trade unions and employee
agreement; or the employer provided untruthful
organizations at the enterprise (i.e. the higher trade
information when entering into the labour contract
union/district labour federation is not included in the
which adversely affected implementation of the
definition of “organization representing the employees
labour contract; etc.);
at the grassroots level” like it is under the old Labour
Code) and it appears that an enterprise can now have • The probationary period applying to a job being
multiple grassroots enterprise trade unions and/or ‘enterprise managers’ as that term is defined in the
employee organizations at the enterprise; Law on Enterprises and the Law on Management
and Use of State Capital Invested in Production and
• There are now only two types of labour contracts:
Business in Enterprises may now be up to 180 days.
a definite term labour contract (the term of which
Previously, under the old Labour Code, the maximum
cannot exceed 36 months from the effective date of
probationary period was 60 days; and
the contract) and an indefinite term labour contract.
Previously, under the old Labour Code, there were • The monthly overtime cap has been increased from
also seasonal or specific job labour contracts which 30 hours to 40 hours.
had a term of less than 12 months;
15ASIA PACIFIC EMPLOYMENT LAW FORECAST 2021
Asia Pacific Employment Team
Helen Colquhuon Katherine Chew
Partner Of Counsel
Hong Kong Singapore
+852 2103 0840 +65 6512 6046
helen.colquhoun@dlapiper.com katherine.chew@dlapiper.com
Johnny Choi Nicholas Turner
Partner Partner
Beijing Sydney
+86 10 8520 0709 +61 2 9286 8522
johnny.choi@dlapiper.com nicholas.turner@dlapiper.com
Lawrence Carter Laura Scampion
Partner Partner
Tokyo Auckland
+81 3 4550 2811 +64 9 916 3779
lawrence.carter@dlapiper.com laura.scampion@dlapiper.com
Komson Suntheeraporn
Of Counsel
Bangkok
+66 2 686 8557
komson.suntheeraporn@
dlapiper.com
16DLAPIPER.COM
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