Multi-jurisdictional Labor and Employment Law update - December 2014 Issue
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December 2014 Issue Multi-jurisdictional Labor and Employment Law update
In this issue …
Editorial 2
Bulgaria 3
• Updates on health and safety at work in Bulgaria
France 4
• Health and safety in France: the protection of employees’ physical and
psychological health
Italy 5
• The latest amendments to health and safety provisions in Italy
Japan 6
• Amendment to the Industrial Safety and Health Act in Japan:
employees’ stress check will become mandatory
Kazakhstan 7
• Work safety in Kazakhstan
Netherlands 8
• The Dutch work and security act
New Zealand 9
• New dawn for New Zealand health and safety legislation
Norway 10
• Health, safety and environmental regulations in Norway: responsibilities
of the employer for physical and mental health
11
Peru
• Health and safety at work in Peru: the empowerment
of workers and special protection for people with disabilities
Spain 12
• Health and safety in Spain: organizing labor risk prevention
Ukraine 13
• Labor protection in Ukraine
1 Multi-jurisdictional Labor and Employment Law updateEditorial
Health and safety issues
at work have become
more and more prominent
in the workplace around
the world.
The primary concern
with respect to health
and safety issues had always been limited
to protecting the physical integrity and
health of employees mostly employed to
do manual work. Following the Industrial
Revolution, most of these health and safety
issues focused on the conditions of workers
in factories.
In the twenty-first century, we are
experiencing a radical shift in health and
safety issues towards concern for the
mental, emotional, and psychological health
of employees, as well. Indeed, the focus
of health and safety issues today is not
only on physical health for manual and
factory workers but also for all employees,
including office workers.
The growing trend of employee claims
against employers for stress, bullying and
most recently “abusive misconduct” should
cause a reasoned employer to pause and
consider the potential risks and corrective
actions required to protect the health
of its employees.
Roselyn Sands
Labor and Employment Law Leader
Multi-jurisdictional Labor and Employment Law update 2Bulgaria
Updates on health and safety matter seriously. A number of individuals The license for providing intermediary
have been sentenced to imprisonment services has been changed. It is now for
at work in Bulgaria
because it was proven that they acted an unlimited period of time, as opposed to
The Bulgarian Labor Inspectorate has negligently when an employee of theirs the previous situation where renewal was
recently indicated, in its annual report, died during working hours. required every five years. A new regime
that the most common violations in the was established for intermediary agencies
Another established court practice says
employment area are those of health providing a one-off service or services for
that the mere appointment of someone
and safety at work regulations. They a limited period of time. These will now be
to be responsible for health and safety
represent 41.3% of all violations. subject to a notification regime instead
at work, and holding daily briefings with
More than half of them are breaches employees, is not enough to fulfill the of registration.
related to the organization and employer’s obligations when there is
management of activities aimed at no real control of the workplace.
ensuring health and safety at work. Tanya Stivasareva
At the same time, court practice
A large number of violations are tanya.stivasareva@bg.ey.com
safeguards the basic rule of civil law.
also connected with the work facility,
When there is contributory negligence on
technological processes and the norms
behalf of the injured, the responsibility of
on occupational hygiene. Delegating
the employer shall be reduced or rejected.
activities to incompetent employees has
been identified as a major reason for this
Amendments in legislation for
high percentage of violations of health
intermediary agencies
and safety regulations.
With a view to eliminating the discrepancies
However, comparative analysis shows that,
identified by the European Commission,
each year, the relative share of companies
a bill amending the Employment Promotion
that have taken measures to eliminate
Act has been recently adopted. The
professional risk and be compliant with
obligation to register each agreement
legislative requirements increases.
between a Bulgarian intermediary
Recent court practice also indicates agency and a foreign employer with the
that the authorities enforcing health Employment agency was abolished.
and safety at work issues are taking the
3 Multi-jurisdictional Labor and Employment Law updateFrance
Health and safety in would in turn increase stress and affect no longer guarantee just the physical
the psychological health of the remaining integrity of their employees. They must
France: the protection of
employees.” Ever since this decision, also ensure that their psychological health
employees’ physical and companies planning restructuring within is protected. Over the past few months,
psychological health their organization are wary of the manner there have been several cases where
in which they evaluate and quantify the employers were fined under health and
Over the past few years, health and safety
potential impact on individual workloads. safety rules because they failed to protect
has been at the heart of French legislation
In a recent decision, the French Supreme an employee against the “psychological”
and case law. It has become more and
Court ruled , that unless proper supervision bullying of his colleagues.
more important as the notion of health
and safety in France has expanded to was applied, working schemes designed
include elements that are not traditionally around days worked as opposed to hours Lastly, harsh working conditions have
considered to be tied to health and safety. worked, given that they threatened the been at the heart of a debate regarding
Indeed, the notion of health and safety has psychological health of employees. This French retirement pension. Indeed, it was
evolved into two ways. decision had a considerable impact, as generally felt that individuals who worked
most managers in France are on a working under harsh conditions, such as individuals
The first relates to the physical health of
day system. Therefore, in order to remedy who frequently worked in contact with
employees at work. For example going
this situation, employers must now set dangerous chemicals or were exposed
beyond factory workers, in recent years,
up biannual meetings with employees to extreme temperatures, should benefit
the risks of repetitive strain injury in an
whose employment contracts contain from earlier retirement. Therefore, starting
office environment have increased.
such provisions, in order to evaluate the 1 January 2015, each employee will be
The second relates to employees’ psychological impact of the employee’s able to monitor throughout his/her career
psychological health. Not only does this workload and avoid excessive stress the level of harshness of the career which
seem somewhat distant from the initial at work. will then impact the age of retirement.
purpose of health and safety laws, but it
In addition, the national collective
is also applied to several issues that could In conclusion, health and safety in France
bargaining agreement “Syntec” has just
seem unrelated to health and safety. is becoming a very prevalent issue for
been modified to allow employees a right
For instance, in a recent decision, the Paris to “disconnection” time from their smart companies. They must now be concerned
Court of Appeal ruled that a restructuring phones and computers, also for the with stress related and psychological issues
plan organized by one of France’s largest intended effect of allowing employees to as well as their employees’ physical health.
entertainment retail chains was illegal psychologically “rest.”
given that: “The restructuring plan failed to
The idea of psychological health is also
account for health and safety risks tied to Roselyn Sands
expanding to issues tied to bullying and
the fact that the plan would potentially lead roselyn.sands@ey-avocats.com
discrimination at work. Employers must
to an increase in individual workload, which
Multi-jurisdictional Labor and Employment Law update 4Italy
The latest amendments In case of supply contracts, the party Italian Government has assigned a leading
contracting out the work is permitted to role to lawyers in a so-called assisted
to health and safety
replace the risk assessment form. The negotiation procedure, “procedura di
provisions in Italy form must be jointly prepared with the negoziazione assistita da un avvocato.”
Law Decree no 69/2013, published contractor, by appointing a fully qualified This negotiation attempt will be mandatory
in the Italian Official Gazette no 144 delegate in charge of the supervision and in payment claims below €50,000. In other
on 21 June 2013, came into effect on coordination of the parties for the purposes cases, the parties are not compelled to
22 June 2013. This law decree, called of compliance with the safety at work begin negotiations. But lawyers shall inform
“Decreto del Fare” (Decree for Action), provisions. This appointment can only be the client of the possibility of recourse to
aims to resolve long-standing issues that made if the activities are characterized as such procedure.
are considered to have held back economic low risk in terms of accidents at work and
occupational diseases. It is important to highlight that, according to
growth in Italy over the past few years.
the law decree, employees’ rights provided
In summary, the main measures of the by law or by collective agreements can also
Simplifications for short term
legislation that relate to employment be object of negotiation.
are the following.
employment contracts
The law decree simplifies the duties of
Safety at work and work employers in relation to health information
Stefania Radoccia
contracted out and supervision for workers hired with
stefania.radoccia@it.ey.com
employment contracts for terms not
The law contains new provisions for
exceeding 50 days on aggregate per
activities with a low level of risk of
calendar year.
accidents at work and occupational
diseases. For such activities, the law
The new negotiation procedure
provides that a form of attestation may be
used. This attestation will replace the more Law Decree no 132, of 12 September 2014,
complex evaluation document currently introduces a new alternative dispute
prepared by employers in accordance with resolution system. In order to reduce the
the law on safety at work. existing case backlog before the courts, the
5 Multi-jurisdictional Labor and Employment Law updateJapan
Amendment to the Industrial that will determine the details of the stress • It
will be the employer’s obligation to
check system. The enforcement regulations receive an opinion from the doctor
Safety and Health Act in
and guidelines are scheduled to be who has conducted the meeting with
Japan: employees’ stress established by March 2015. the employee regarding the measures
check will become mandatory The outline of the stress check system is that are necessary to preserve the
as follows: employee’s health. Based on the
In June 2014, a law to amend Japan’s
doctor’s opinion, if the employee
Industrial Safety and Health Act was • Employers will be required to conduct a deems it necessary to take certain
enacted. One of the most important stress check on employees working at a measures — such as change of workplace,
amendments is the introduction of a workplace where 50 or more employees change of job duties, reduction of
stress check system for employees. are working. For the time being, stress work hours or reduction of late-night
A stress check on employees will checks at workplaces where fewer than working — the employer will need to
become mandatory by December 2015. 50 employees are working will not be take such measures.
Employees’ mental health has become mandatory. But the employer shall
In workplaces, employers are also obliged
a subject of growing concern in Japan. endeavor to conduct a stress check
to handle various issues related to their
Under the country’s labor and employment on these employees.
employees’ mental health. For example, if an
laws, employers can be held responsible • The
frequency of the stress check is employee whose overtime work per month
for their employees’ physical diseases now being discussed, but it is expected exceeds 100 hours requests it, the employer
or injuries and mental illnesses declared that a stress check will be required must set up a meeting with a company
during their employment. And employees once per year. doctor in order to give the employee
can also claim damages through Workers’
• Details
of the procedures undertaken medical guidance. This is because it is
Accident Compensation Insurance.
during the stress check will be provided considered that working long hours can
According to figures provided by the for in the enforcement regulations or cause mental as well as physical illness.
Japanese Government, the number of guidelines to be established by MHLW.
Employers could also face difficulties
claims made by workers under Workers’ • The
stress check will be conducted by when terminating the employment of a
Accident Compensation Insurance due to a doctor, a public health nurse or other worker who suffers from a mental illness.
mental illness has increased in recent years. professional that will be stipulated in the Also, if an employee’s mental illness is
During the fiscal year from April 2013 to enforcement regulations or guidelines caused by over-work, a severe working
March 2014, 1409 claims for insurance by MHLW. environment or other reasons attributable
benefits due to mental illness were
• Doctors
or other professionals who to the employer, the employer could be
submitted to the labor standards inspection
conduct the stress checks on employees liable to compensate for damage suffered
offices. This includes 177 claims due to
cannot disclose the result thereof to any by the employee. This could include
employee’s suicide or suicide attempts.
third party, including the employers. covering medical bills, compensating
The main objective of the mandatory It will be the employers’ obligation to for loss of income or providing other
employees’ stress check system is to provide results of the stress check to compensation.
prevent the development of mental illness, each employee. Consent of the employee
by helping employees to identify when must be given before the results are
they are suffering from stress. shared with the employer. Emi Uchida
The amendments to the Industrial Safety • Depending
on the level of stress detected emi.uchida@jp.ey.com
and Health Act relevant to employees’ during the check and at the request of
stress checks are scheduled to come into the employee, the employer will have
force by December 2015. The Ministry of to set up a meeting with a doctor at
Health, Labor and Welfare (MHLW) is now which the doctor gives medical guidance
in the process of preparing the relevant to the employee.
enforcement regulations and guidelines
Multi-jurisdictional Labor and Employment Law update 6Kazakhstan
Work safety in Kazakhstan of various measures set by Kazakhstan’s or
labor legislation and obligatory for both • A special investigation of a job-related
The Kazakh Constitution guarantees a employers and employees. accident.
safe work environment for all employees.
There are also a number of legal acts Depending on the factors associated with In case of a work-related accident, among
in Kazakhstan which regulate work performance of work, the Kazakh legislation other things, an employer is obliged to
safety issues as well as international differentiates between the following types of provide first aid to an injured employee,
treaties related to work safety, such as working conditions: immediately inform his/her relatives
the Agreement on Cooperation in the • Normal working conditions and notify the relevant state authorities
Work Safety Sphere with CIS countries and employee representatives about the
• Heavy work
and the Treaty of the International accident, as well as initiate an investigation.
• Work in harmful (extremely harmful)
Labor Organization on Work Safety The ordinary investigation of a job-
and/or hazardous conditions.
and Hygiene in the Production Sector. related accident should be conducted
The type of working condition is established
Kazakh labor legislation guarantees work by the employer with the participation
by specialized companies which are
and safety at work through two avenues. of employee representatives. A special
mandated by the Ministry of Healthcare
First, it sets forth obligations with which investigation additionally requires the
and Social Development of the Republic of
employers must comply and which aim participation of representatives of the
Kazakhstan.
to promote safety at work. Secondly, relevant state authorities.
it gives the government the power to There are certain general work safety
Based on the results of the investigation, a
control companies in order to ensure requirements that apply for all employers.
commission determines the circumstances
they enforce the applicable rules. They include:
of the accident and the degree of the
At the moment, health and safety at work 1. Conducting work safety training/ employer’s fault in the accident. Upon
is a recurrent issue for state authorities. examination for employees specifically completion of the investigation, the
For instance, in 2014, the Kazakhstan labor tailored to their job employer has to register the accident in
authorities launched in several regions 2. Creating and updating certain documents the register of work-related accidents
a pilot project for voluntary declaration such as work safety instructions, training and submit statistical reporting to the
by employers on their compliance with registers state authorities. Moreover, an employer
work safety requirements. Employers who may be obliged to arrange for and/
3. Sending, at least once every three years, or pay significant compensation to the
proceed with such declarations will have a
management and specialists responsible injured employee.
reduced amount of labor inspections over a
for work safety for regular training/
period of three years. It is worth noting that Kazakh legislation
examinations in this regard
has implemented serious sanctions, both
General information on work safety In addition, employers with production criminal and administrative, for employers
regulation in Kazakhstan facilities and which have production who violate work safety requirements.
activities are obliged to have a work and For instance, a work safety specialist’s
Kazakhstan’s labor legislation has set
industrial safety specialist and department violation of work safety requirements that
forth a specific definition of the term
as well as to have their working conditions leads to an employee’s death may lead to
“work safety.” Work safety is a system
re-established once every five years. a maximum sentence of five years with
which aims to protect the health and safety
of employees as they perform their work a possible prohibition of employment in
Investigation of work-related certain positions or engagement in certain
duties. Work safety includes a variety of
accidents activities for a period of up to three years.
issues and means which can be legal, social
and economic, administrative and technical, Along with work safety issues, the In light of the above, it is very important for
sanitary and epidemiological, medical and Kazakh labor legislation strictly regulates employers to make sure that they comply
preventive, recreational. the procedure for the investigation of with all requirements of Kazakh work
work-related accidents. Depending on the safety law.
Employers not only protect the health and
seriousness of an accident, an employer
safety of their employees, but ensure that
has to initiate either:
such protection is maintained through
the course of time. Work safety consists • An ordinary investigation Dinara I Salikhzyanova
dinara.salikhzyanova@kz.ey.com
7 Multi-jurisdictional Labor and Employment Law updateNetherlands
The Dutch Work and employer must inform such employees, of sickness or invalidity, or culpable acts
no later than one month before the end or omissions) will take place through
Security Act
of the employment contract is set to end dissolution by the sub district court.
On 1 January 2015, part of the Dutch by operation of law, whether or not the In comparison with the current rules, the WWZ
Work and Security Act (WWZ) will come employment contract will be extended allows the possibility for appeal and appeal in
into effect. The WWZ is one of the largest and, if so, under what conditions. This duty cassation for both dismissal alternatives.
overhauls of Dutch labor law in the past of notification also applies to renewals
decade. The WWZ has three main goals: of fixed-term employment contracts. In Transitional payment
the event that the employer fails to notify The formula used by the sub district court
• To make laws governing termination of
the employee, or fails to do so in time, (in Dutch: kantonrechtersformule) will
employment contracts fairer, easier,
the employment contract will end on the be abolished. Under the new rules, an
quicker and less costly to apply
agreed date, but the employer will be employee whose employment contract
• To strengthen the position of flexible obliged to pay a maximum compensation has been in place for two years is entitled
workers of one month’s salary to the employee. to a transitional payment, regardless of
• To reduce the maximum unemployment the manner of dismissal. The transitional
benefit in the hope of encouraging the Changes from 1 July 2015 compensation is equal to a third of the
unemployed to find a job monthly salary per year of service, for
Successive contracts rules
the first 10 years of service; and half
The modifications will take effect at three The successive contracts rules (in Dutch:
of a monthly salary per year of service
different moments: on 1 January 2015, ketenregeling) state that successive fixed-term
afterwards. The transitional payment
1 July 2015 and 1 January 2016, epending employment contracts are converted into
cannot exceed €75,000 or one year’s
on the nature of the modifications and the employment contracts for an indefinite period
salary if this is higher than €75,000.
persons affected. of time at a certain point. As of 1 July 2015,
The transition payment must subsequently
the successive contracts rules are as follows:
be used by the employee for finding
Modifications applicable on Three fixed-term employment contracts may other work. The employee could lose the
1 January 2015 be concluded within a space of two years. This right to benefit from the payment if he
• Modifications that will be applicable on includes interruptions of up to six months. An commits a serious culpable act during
1 January 2015 aim to strengthen the employment contract for an indefinite period his employment relationship.
situation of employees with a fixed-term of time is formed by operation of law under
employment contract. According to the either of these circumstances: Changes from 1 January 2016
WWZ, employers may no longer include • The two-year period is exceeded in the case Limitation of the duration of
a probationary period in a fixed-term of two or more employment contracts. unemployment benefits
employment contract with a term of six As outlined above, the changes
• A fourth fixed-term employment
months or shorter. A probationary period contained in the WWZ with respect to
contract is formed.
in such an employment contract will be the Unemployment Insurance Act aim to
considered as null and void. Alteration of the dual dismissal system
The two alternative paths for dismissal — ensure that people find a new job soon after
• In addition, in principle, according to the being made unemployed. Therefore, the
permission from the Dutch Labor Office
new rules, non-compete clauses will be maximum duration of benefits under the
to give notice and dissolution by the sub
prohibited in fixed-term employment Unemployment Insurance Act will drop from
district court — will continue to exist under
contracts. However, if the employer has a 38 months to 24 months. Another measure
the WWZ. However, there will be one single
substantial business interest in including that aims to ensure that the unemployed
manner of dismissal mandatorily prescribed
a non-compete clause, the clause could accept job offers as quickly as possible is
by the law, depending on the reason for
be regarded as valid if it substantiates, that all jobs qualify as suitable employment
the dismissal. For dismissal on grounds
in a written statement, the necessity of after six months of unemployment. This
of (a) economic reasons or (b) long-term
the non-competition clause. means that people entitled to unemployment
incapacity for work, dismissal will take place
• Finally, the WWZ will introduce a by requesting permission from the Dutch benefits will be obliged to accept all available
notification duty for the benefit of Labor Office to terminate the employment jobs after six months of unemployment.
employees with a fixed-term employment contract. Dismissal for other reasons
contract with a duration of six months Nicky Ten Bokum
(such as a damaged working relationship,
or more. According to this new law, the nicky.ten.bokum@hollandlaw.nl
inapplicability, inability to work as a result
Multi-jurisdictional Labor and Employment Law update 8New Zealand
New dawn for New Zealand • Each PCBU will have duties for the safety • Review their approach to workplace H&S
of its own employees, the employees of
health and safety legislation • Assess whether the processes and
contractors and subcontractors (to the procedures currently in place are
New Zealand is in the midst of a once in a degree that it can influence this) and adequate (a gap analysis)
generation change to its health and safety anyone else who may be affected by the
• Check that directors and senior
(H&S) regime. With one in ten workers work. PCBUs with responsibilities for
managers will receive the training and
suffering a workplace accident each year the same workplace will be required to
resources necessary for them to comply
and workplace accident costs estimated cooperate and coordinate compliance
with their new due diligence duties
at 2% of GDP, New Zealand workers are efforts
significantly more likely to suffer injury or • Liaise with other involved parties to
• All directors and senior managers of
be killed at work than their Australian and establish a collaborative approach to the
a PCBU will be under a duty to take
UK counterparts. new overlapping, mutual H&S duties
reasonably practicable steps (or exercise
Following the tragic death of 29 miners due diligence) to ensure compliance by • Prepare for much wider cooperation with
in a coal mine explosion in 2010, a Royal their PCBU with its H&S duties. Workers workers and their representatives on
Commission of Inquiry and an Independent will have a greater ability to participate in H&S management
Taskforce reviewed New Zealand’s current improving workplace H&S standards Ahead lies a period of change for
H&S regime. They found the current • A radically overhauled penalty regime New Zealand business as H&S assumes
regime to be “unfit for purpose.” will apply. The maximum fine for a a more pivotal role in risk management and
business will rise from NZ$500,000 overall strategy.
A raft of changes was proposed. A new
standalone regulatory body, WorkSafe to NZ$3m, and courts will be able
New Zealand, commenced operations in to make adverse publicity orders.
December 2013. Draft legislation (the Directors and senior managers will face
Health and Safety Reform Bill 2013) is up to five years’ imprisonment and an
Christie Hall
currently before Parliament. The new NZ$600,000 fine.
christie.hall@nz.ey.com
legislation is expected to come into force One of the challenges facing New Zealand’s
in late 2015. legislators and WorkSafe is encouraging
The Bill is based on Australian Model Work office-based businesses to prioritise H&S.
Health and Safety Act. It comprehensively Although covered by both the current and
reforms New Zealand’s current H&S laws. the proposed legislation, stress-related and
Major changes include: other psychological harm has traditionally
been addressed through New Zealand’s
• The primary duty to take reasonably employment regime. One indicator that
practicable steps to ensure worker this may be changing following WorkSafe’s
safety will be imposed on the “person establishment is the release in February
conducting a business or undertaking” 2014 of WorkSafe’s guidelines for
(PCBU). Companies, partnerships, “Preventing and Responding to Workplace
sole traders, central government Bullying.” This comprehensive guide
departments and local authorities will defines workplace bullying for the first time
generally all qualify as PCBUs and indicates that WorkSafe is taking an
• Safety duties will extend to all aspects of active interest in psychological, as well as
the supply chain. Those who commission, physical, harm in the workplace.
design, install, manufacture, import and
The proposed legislative changes are
supply plant, structures and substances
already having an impact. Now is the time
will qualify as PCBUs with safety duties
for organisations with New Zealand-based
operations to:
9 Multi-jurisdictional Labor and Employment Law updateNorway
Health, safety and The employer also has to ensure that The Working Environment
there is no harassment, including sexual Committee
environmental regulations
harassment, or other improper conduct in
in Norway: responsibilities All businesses with at least 50 employees
the workplace and that, as far as possible,
must establish a working environment
of the employer for physical employees are protected against violence,
committee.
and mental health threats and undesirable strain as a result of
contact with other persons. The employer The duties of the working environment
is obliged to have a procedure for handling committee are to make efforts to
mployer’s responsibility for health,
E establish a fully satisfactory working
bullying at the workplace.
safety and the environment environment, participate in planning
The employer has primary responsibility The employer shall ensure that measures
safety and environmental work, and
for ensuring that the statutory to maintain a good working environment
follow up developments closely in questions
requirements related to health, safety are systematically implemented. This
relating to the safety, health and welfare
and environment are implemented. The includes systematic work on sick leave.
of the employees.
Norwegian Working Environment Act
contains a general requirement that Supervision and responsibility Sanctions
the working environment shall be fully It is the employer’s duty to conduct
The Labor Inspection Authority can
satisfactory when factors in the working ongoing monitoring of the working
respond to contraventions of health,
environment can influence the employees’ environment through internal control.
environmental and safety legislation
physical and mental health and welfare. It is also their duty to ensure that the
with various sanctions, including orders,
The requirements that must be satisfied work is planned and organized to meet
coercive fines and notification to the police.
depend on the size and risk related the requirements that are laid down in the
Which sanction is chosen will often be a
to the enterprise. Working Environment Act and appurtenant
matter of judgment.
regulations. Employees have both the right
equirements for the working
R and obligation to participate in activities at Whenever the law or regulation has
the workplace to ensure this. been contravened, the gravity of the
environment
contravention and the type of enterprise
According to the Working Environment In addition, several important roles are
involved will all have a bearing on the
Act, it is the responsibility of the employer defined in the regulations that are designed
choice of sanction.
to ensure that the working environment is to ensure control and monitoring of the
fully satisfactory regarding the employees’ working environment:
physical and mental health and welfare.
The employer shall also take into account Safety delegates Sven Skinnemoen
the employees’ individual physical and All businesses must elect a safety delegate sven.skinnemoen@no.ey.com
psychological abilities when organizing (alternative solutions may be agreed if the
and arranging the work of the individual. business has fewer than 10 employees).
The workplace must be organized so The safety delegate represents the
as to preserve the employees’ integrity employees in all matters that are relevant
and dignity, and to enable contact and to the working environment.
communication with other employees.
Multi-jurisdictional Labor and Employment Law update 10Peru
Health and safety at work in hazardous work activities or any activity The frequency at which employees
that may affect proper physical and must take periodic medical examinations
Peru: the empowerment of
mental development. has changed during the last year. The
workers and special protection original version of Law No. 29783 and its
3.Employers must establish appropriate
for people with disabilities mechanisms and tools for people with supplementary regulations required that
disabilities to help them do their jobs in periodic occupational medical examination
With the issuance of Law No. 29783, the
an adequate environment. took place on an annual basis. But an
Health and Safety at Work Act, a legal
amendment to the law published in 2014
protection system was established in Peru 4. Employers must ensure a job transfer for has changed the frequency to every two
in order to create appropriate mechanisms staff who have suffered a disability that years, unless workers perform hazardous
to ensure the health and safety of workers prevents them from proper development activities. In such cases, the frequency
in different labor regimes. The system also in their original job position, as a will be defined by the authorities in their
promotes a prevention culture against risks consequence of a work accident or an respective activity sectors.
arising from working activities. occupational disease.
The change in frequency of medical
Prior to this law, health and safety at work One of the most important aspects examinations is the product of reflects
in Peru was regulated by Supreme Decree developed by the law is the active the view of business associations, which
No. 009-2205-TR, which established a participation of workers and work want to reduce the costs generated by
system with lower standards. unions in the management of safety occupational medical examinations.
This law, which was the first passed by and health at work.
As a result of the issuance of Law
the current government of President In this regard, the law requires that No. 29783, the company representative
Ollanta Humala, is based on the each company with 20 or more workers in charge of health and safety at work is
following principles: must have a Safety and Health at Work exposed to deprivation of liberty should
• Prevention: The employer must Committee. The committee must consist of their negligence endanger the life or
establish mechanisms that aim to protect equal numbers of employer and employee well-being of any worker.
the health and safety of its employees representatives.
The issuance of Law No. 29783 has
and any provider of services within The election of workers’ representatives already produced encouraging results.
its facilities. must be done through an electoral process For example, the number of accidents
• Cooperation: The Government, led by the union with the most affiliated in the mining industry declined by
employers, workers and worker unions workers. If the company does not have approximately 18% between 2012
must establish appropriate mechanisms a work union, employees must organize and 2013.
for cooperation on safety and health the elections.
Such results are the consequence
at work compliance. The Safety and Health at Work Committee of responsible companies showing
• Integral management: The employer is responsible for the enforcement of commitment to the health and safety
must promote the management of safety the safety and health at work policies of their employees, and of the correct
and health at work in its facilities. established by the company. It is also legal enforcement by the Peruvian
responsible for developing the company’s labor authorities. Nevertheless, there
Furthermore, Law No. 29783 provides a
internal regulations on safety and health is still much progress to make on health
special emphasis on the protection and
at work and for ensuring that all safety and and safety at work standards. It is the
development of pregnant women, underage
health at work obligations are being duly responsibility of Peruvian authorities
workers and people with disabilities. This
fulfilled by the company. and employers to continue to drive
special protection is manifested in the
following employer obligations: Among other relevant obligations set by improvement.
Law No. 29783, companies must submit
1. Employers must transfer expectant
their workers to occupational medical
mothers, or mothers during
examinations: Jose Ignacio Castro Otero
breastfeeding phase, to a job
position that does not involve 1. Before employment jose-ignacio.castro@pe.ey.com
any health or security risk. 2. During employment
2. Employers are prohibited from hiring 3. After termination of employment
or retaining teenage workers to perform
11 Multi-jurisdictional Labor and Employment Law updateSpain
Health and safety in Spain: These appointed employees benefit building or commercial center.
from the same guarantees given to the However, this option is not available
organizing labor risk prevention
members of the Works Council (e.g., for those companies obliged to
The control of the correct application of special protection against dismissal, constitute their own prevention service
the labor risk prevention rules in Spain may permanence priority when collective in the terms described in the above
lie in both the company itself as well as in dismissals are carried) so that their paragraph.
external agents. The size of the company, independence towards the employer
the potential labor risks associated with in the performance of the labor risk 5. Contracting with external
its activity and the choice made by the prevention activities is guaranteed. prevention service providers
employer are the three aspects that come
External labor risk prevention services
into play when it comes to decide who shall 3. Implementing a company’s are rendered by specialized entities in
be the responsible for labor risk prevention internal prevention service the following cases:
in a certain company.
The employer must constitute this • When the designation of one or
The law establishes five different available service in the three following cases: more employees is not sufficient
options which allow the employer to
• In companies employing more than for the correct performance of
organize the labor risk prevention service:
500 workers the prevention activities and
• In companies employing more than the constitution of a company’s
1. Voluntarily undertaking labor risk prevention service is not mandatory
250 workers and having particularly
prevention activities
risky activities • In companies that are compelled by
Employers may voluntarily assume the the competent Labor Authority to
• In companies that are not included
leading role in the labor risk prevention constitute the company’s prevention
in the two above mentioned cases
activities provided that their companies service
but are obliged to constitute the
employ less than 10 workers.
company’s prevention service by • When the labor risk prevention
Exceptionally, they may also be in
the competent Labor Authority, activities are only assumed partially
charge of the labor risk prevention
due to a series of circumstances by the company (the company
in companies employing more than
such as the accident rates and the meaning the employer himself, the
10 workers and less than 25, provided
risks associated with the activities designated employees or the internal
that all their activity takes place in one
performed by the company prevention service)
single workplace. This option is only
available for the employers whose In this latter case, the employer Therefore, it is possible to externalize a
employees regularly perform their may also decide to hire an external part of the labor risk prevention service
activities in the same workplace. prevention service on the terms that through the hiring of a specialized
will be described in paragraph five. entity even if some labor risk
2. Appointing one or more employees In all these cases, the employees in prevention activities are already being
to deal with labor risk prevention charge of this service shall exclusively carried out by internal agents.
activities devote themselves to it and be provided In conclusion, Spanish labor risk
Employers who employ less than with the adequate means in order to prevention activities may be undertaken
500 employees, or who have perform their activities correctly. by different entities depending on
“particularly risky activities” certain circumstances, such as the
(“actividades de especial riesgo”), 4. Constituting joint prevention potential risk of the activities carried on
may choose to appoint one or more services through cooperation by the company or its size. However, the
employees to deal with labor risk with other companies regulation tries to be flexible allowing in
prevention activities. The employees most cases the employer to take some
This option consists in the creation
designated are not obliged to devote decisions concerning the way in which he
of a single prevention service whose
themselves exclusively to labor risk wants labor risk prevention to be tackled
services are provided to different
prevention. However, the employer in his company.
companies. It is only possible to
must provide them with the adequate constitute joint prevention services for
means and the time that is necessary companies rendering their services
for them in order to attend their duties. simultaneously in the same workplace, Raul Luis Garcia Gonzalez
raulluis.garciagonzalez@es.ey.com
Multi-jurisdictional Labor and Employment Law update 12Ukraine
Labor protection in Ukraine the level of light, noise and vibration in the The respective directives’ provisions should
workplace, and the microclimate. be implemented in a 3 to 10 year period
Ukraine has an extensive legal framework after the association comes into force.
in respect of health care, labor and social Nevertheless, as a legacy of the former
protection. These issues are regulated by Soviet Union, the Ukrainian legislation on Analysis of existing Ukrainian regulations
the Constitution of Ukraine, the Labor Code occupational safety concentrates mainly and provisions of the above mentioned
of Ukraine, the Law of Ukraine “On labor on the physical health of the employees, directives shows that, in the coming years,
protection” and a wide range of regulatory and the protection of specific categories health and safety at work in Ukraine should
acts adopted in conformity with those of employees, such as pregnant women, improve significantly.
mentioned above. single parents, young workers and those It is also worth mentioning that decisions
with disabilities. Existing laws prescribe of the Ukrainian courts on labor protection
Labor safety legislation has been mandatory health checks on a regular
developing rapidly since Ukraine’s cases are usually favorable for the
basis for employees working in arduous individuals rather than the enterprises.
independence in 1991. The Law of conditions, and for all employees under 21.
Ukraine “On labor protection,” which is Claiming compensation for physical
the fundamental document in this area, However, the protection of employees’ damage caused by unsafe conditions at
was adopted as early as 1992. It was the mental health is not guaranteed. This may the workplace is fairly provided for in
first legal act within the territory of the become a major problem because recent Ukraine’s current legislation. However,
former Soviet Union that changed the labor research shows that more than 57% of claiming compensation for non-pecuniary
safety provisions derived from the Soviet office workers in Ukraine are regularly damages — for example, mental health
Union. Since its adoption, the law has been working over-time, which leads to a deterioration caused by stress — is not
modified more than 20 times, and was problematic work-life balance, constant very common and might have low success
completely revised in 2002. stress and the deterioration of health. rate because it is difficult for individuals to
On 16 September 2014, the Ukrainian substantiate such claims.
According to the law “On labor protection,”
state policy in the labor safety sphere Parliament, Verkhovna Rada, ratified the Non-compliance with the regulatory
should be based on the following principles: Association with the European Union, requirements related to labor protection
prioritizing life and health protection of which envisages close cooperation in in Ukraine may result in the imposition
workers over economic interests, full the social and economic spheres and, of financial sanctions on the offending
responsibility of the employer to create in particular, in the area of health and enterprises and their executives. It
safe and healthy conditions of work, the safety at work. may even lead to enterprises being
establishment of single requirements on According to the association, Ukraine prohibited from conducting their
labor safety for all enterprises, irrespective shall implement the provisions stipulated activities. Additionally, according to the
of their type, and adapting work processes by the Directives of the European Criminal Code of Ukraine, executives of
to the capabilities of each particular Economic Community into national the offending companies may be subject
employee, based on his health and legislation. In particular, among others, to criminal liability of up to 10 years’
mental state. Ukraine shall implement the provisions imprisonment for violation of labor safety
of directives concerning: requirements that entail health damage
Additionally, the Cabinet of Ministers of to an employee death of an employee, or
Ukraine and Ministry of Health Protection • Minimum safety and health requirements creating a situation dangerous for life.
of Ukraine have issued a number of very for the workplace
specific resolutions and orders concerning
• Minimum safety and health requirements
labor protection in Ukraine. These include
for the use of work equipment by Oksana Lapii
norms limiting weight for lifting and moving
workers oksana.lapii@uea.ey.com
heavy cargos by women and minors;
hygienic classification of work types, based • Minimum safety and health requirements
on harmful and hazardous occupational for work with display screen equipment
factors and work stress; and labor safety • Certain aspects of the organization of
regulations while operating a computer. For working time
example, regulations set requirements for
13 Multi-jurisdictional Labor and Employment Law updateContacts
Labor and Employment Law services
For further information, please contact:
Australia Germany Peru
Dayan Goodsir-Cullen Karsten Umnuss Jose Ignacio Castro Otero
Email: dayan.goosir-cullen@au.ey.com Email: karsten.umnuss@de.ey.com Email: jose-Ignacio.castro@pe.ey.com
Austria Greece Poland
Helen Pelzmann Maria Rigaki Aleksandra Mazur-Zych
Email: helen.pelzmann@pglaw.at Email: maria.rigaki@gr.ey.com Email: aleksandra.mazur-zych@pl.ey.com
Belgium Hungary Portugal
Frank Ruelens Anett Vandra António Garcia-Pereira
Email: frank.ruelens@hvglaw.be Email: anett.vandra@hu.ey.com Email: garcia.pereira@apml.pt
Bulgaria India Romania
Tanya Stivasareva Tarun Gulati Nicoleta Gheorghe
Email: tanya.stivasareva@bg.ey.com Email: tarun.gulati@pdslegal.com Email: nicoleta.gheorghe@ro.ey.com
Russia
China Italy
Oleg Shumilov
Jane Dong Stefania Radoccia Email: oleg.shumilov@ru.ey.com
Email: dongj@chenandco.com Email: stefania.radoccia@it.ey.com
Jerry Liu Singapore
Email: zhan.liu@chenandco.com Japan
Jennifer Chih
Emi Uchida Email: jennifer.chih@pkw.com.sg
Denmark Email: emi.uchida@jp.ey.com
Julie Gerdes Spain
Email: julie.gerdes@dk.ey.com Kazakhstan
Raul Luis Garcia Gonzalez
Dinara I Salikhzyanova Email: raulluis.garciagonzalez@es.ey.com
Estonia Email: dinara.salikhzyanova@kz.ey.com
Hedi Wahtramae Switzerland
Email: hedi.wahtramae@ee.ey.com Mexico
Sylvia Spinelli
Carina Barrera Email: sylvia.spinelli@ch.ey.com
Finland Email: carina.barrera@mx.ey.com
Riitta Sedig Alonso De La Pena Turkey
Email: riitta.sedig@fi.ey.com Email: alonso.delapena@mx.ey.com
Mehmet Kucukkaya
Email: mehmet.kucukkaya@tr.ey.com
France New Zealand
Roselyn Sands Christie Hall Ukraine
Email: roselyn.sands@ey-avocats.com Email: christie.hall@nz.ey.com
Oksana Lapii
Email: oksana.lapii@uea.ey.com
Gabon Norway
Fatima-Kassory Bangoura Sven Skinnemoen United Kingdom
Email: fatima-kassory.bangoura@ga.ey.com Email: sven.skinnemoen@no.ey.com
Dan Aherne
Email: daherne@uk.ey.com
Multi-jurisdictional Labor and Employment Law update 14EY | Assurance | Tax | Transactions | Advisory
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