APAC Employment Law Forecast 2021

April 15, 202112:04 pm2834 views
APAC Employment Law Forecast 2021
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2020 has brought about a significant number of changes to working life in most APAC countries.  Some significant adjustments that have been enacted include changes in employee leave policies, reimbursement scheme, termination terms and conditions, and some more. Meanwhile, 2021 is set to bring new employment law with wide-ranging proposals in the pipeline. Policies ended or extended due to the Covid-19 pandemic, while some regions put in place steps to improve diversity in the workplace. 

Here is APAC Employment Law Forecast that might be legalised in 2021: 

Australia

Australia is likely to see changes in its employment bill, following the introduction of the Australian Government’s Industrial reforms legislation. Some of the key changes include: 

  • Casual employees issues continue to be the main focus. The bill currently proposes the inclusion of a definition of casual employment. A statutory definition would seek to clarify casual working arrangements and related entitlements. 
  • Compliance with modern awards will remain a key area of focus as Australia continues to see instances of widespread non-compliance. The new bill proposes the introduction of a new criminal offence for dishonest and systematic wage underpayments in response to non-compliance. 
  • The bill on JobKeeper flexibilities proposes an extension of the existing JobKeeper flexibilities in the Fair Work Act which were introduced as a result of the pandemic. This new bill is considered across the entire workforce as employers downsize office space and employees seek to continue remote-working and flexible working arrangements. 
  • Employees are seen to be more litigious and they seemingly make a claim for workers compensation. Employers should also expect to continue to see activity in enforcing post-employment restrictive covenants, particularly in the tech sector. 

China 

There are three major changes that employers should expect from China’s new bills, which describe as follow: 

  • A new Civil Code (Code) came into effect on 1 January 2021. The Code provides more clarity by setting out a clear definition of sexual harassment and requires employers to make reasonable efforts to prevent it. The Code also strengthens protections on individuals’ privacy and personal information. 
  • New Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Cases was proposed on 10 September 2020, it set forth stipulations on the objects of trade secret protection, constitutive requirements, determination of torts, etc., which provides specific guidance for enterprises to deal with disputes over trade secrets.
  • Starting from November 2020, social insurance premiums for enterprise employees will be collected by the Tax Bureau (instead of the Human Resources and Social Security Bureau) in multiple regions in China.

Hong Kong 

There are updates on anti-discrimination legislation, anti-sexual harassment, maternity leave, minimum wage freeze, abolishment of MPF offsetting mechanism, anti-discrimination against breastfeeding women, and statutory holiday increase in Hong Kong law. 

  • On 19 June 2020, the Discrimination Lesgitalion Ordinance 2020 was passed, which expanded anti-discrimination legislation. The new legislations include unlawful harassment to cover workplace participants and interns/volunteers, race discrimination to cover race that is imputed and not a person’s actual race; race discrimination to include a person’s “associate”; disability and racial harassment to apply to service providers in the course of serving customers of goods, facilities or services; and repealing the provision that damages will not be awarded for indirect discrimination if the respondent proves it had no intention of treating the claimant unfavourably.
  • On anti-sexual harassment, EOC has established ASHU which includes providing victims with free advice to allow them to explore available and decide on new steps. The ASHU also conducts a review of the current legal regime to recommend legislative changes and improvements in protection. 
  • On maternity leave, there will be an increased statutory maternity leave from 10 weeks to 14 weeks. And on minimum wage, the government adopted the recommendation of the Minimum Wage Commission to maintain the statutory minimum wage rate at HKD37.5, while the next minimum wage recommendation report is required to be submitted by 31 October 2022.
  • On holiday leave, the Hong Kong government announced they will increase the number of statutory holidays from 12 to 17 days. 

India

India is introducing four labour codes. India is also focusing on Haryana state employment of local candidates bill, Karnataka shops and commercial establishments (amendments act), and factories act. 

  • On labour codes, the government is consolidating 29 existing central labour laws into four codes, including Code on Wages, Industrial Relations Code, the Code on Social Security, and Occupational Safety, Health and Working Conditions Code for governing various issues, such as conditions of employment, social security, employee health, safety and welfare, industrial and labour disputes, payment of wages. The Labour Codes have already been passed by the Parliament and have received the President’s assent. The codes are likely to come into effect on 1 April 2021. 
  • On Factory Act, the state governments cited manufacturing processes functioning with the aid of power to 20 or more workers, and to manufacturing processes functioning without the aid of power to 40 or more workers. The Factories Act primarily governs the working conditions and health and safety obligations of employers vis-à-vis the factory employees.

Indonesia 

Indonesia announced a new law on job creation which covers the following aspects: 

  • Omnibus Law Bill which amends various regulations on licensing procedures, investment requirements, land procurement and special economic zones. 
  • The Job Creation Law might simplify the permit requirements for foreign nationals to work in Indonesia. It revokes the provisions on the term of a contract, its extension and renewal. 
  • Completion of a job is now also a ground to terminate a fixed-term contract.
  • The restrictions on the activities and manpower that can be outsourced have been removed. 
  • The total hours of overtime work that employees might be asked to perform have been increased. Overtime can be performed for up to four hours a day or up to 18 hours a week. 
  • Now, only the Governor can determine the provincial and municipal minimum wage, but the municipal minimum wage (if applicable) must be higher than the provincial minimum wage. 
  • The Job Creation Law introduces a single severance package formula (for whatever the ground of termination of permanent employees). 
  • Procedures on the termination of an employment relationship will be issued in government regulation.
  • The Job Creation Law now sets out the general procedure for the termination of employees and clarifies that the industrial relations dispute settlement procedure must generally be followed.
  • New violations have also been introduced which might attract criminal sanctions.

Japan 

Japan government issues six key points on their employment law, as follows: 

  • The Act on the Welfare of Workers Who Take Care of Children or Other Family Members Including Child Care and Family Care Leave was amended and effective from 1 January 2021, allowing employees to take certain child care leave on an hourly basis, instead of one day or half-day increments. However, child care leave will continue to be unpaid leave.
  • Effective from 1 March 2021, employers in Japan will be required to have 2.3 percent of their workforce to include employees with a disability (up from 2.2 percent).
  • The Act on Stabilization of Employment of Elderly Persons will be amended on 1 April 2021, and a new obligation to “make efforts” to secure employment for the elderly will be imposed.
  • Employers are required to provide equal pay and benefits for employees who do substantially the same work unless there is a reasonable basis for the different treatment. 
  • Guidelines regarding side jobs were revised in September 2020, which clarifies how to properly manage the working hours of employees who work at two or more employers. 
  • The MHLW issued a guideline regarding holding safety and sanitation committee meetings in an online format in August 2020.

Malaysia 

Major changes were made to the Industrial Court process and appeals pursuant to the Industrial Relations (Amendment) Act 2020, which came into force partially in January 2021. The new amendments include: 

  • The discretion of the Minister of Human Resources to refer unfair dismissal complaints has now been removed.
  • The Industrial Court can now continue with the hearing of an unfair dismissal claim following the death of the claimant.
  • The Amendment Act also now provides parties with a direct right of appeal to the High Court. 

New Zealand 

New Zealand has seven key changes in their employment law, covering minimum wage, pay equity, worksafe, classification issues, holidays act, fair pay, and whistleblowing. 

  • The Government has committed to increasing the minimum wage on 1 April 2021 from NZD18.90 to NZD20.
  • Pay Equity Amendment Act provides a more accessible pathway to raise and review claims of systemic pay undervaluation in female-dominated occupations. 
  • New Zealand’s government amends two changes on sick leave and discretionary bonuses. First, there will be an increase in sick leave from five to 10 days per year. The increased entitlement will affect all employees once they have completed six months’ continuous service. Second, NZEmpC 39 mentioned that “discretionary bonus” linked to performance and/or KPIs will not be deemed a “discretionary payment” under the definition of gross earnings and must therefore be included in holiday pay calculations. 
  • The Government has indicated that it may look to extend minimum employment entitlements to cover a ‘dependent contractor’ as a third category of worker, alongside employees and contractors.
  • The Labour Government has committed to introducing a framework allowing unions, employers and the Employment Relations Authority to collaboratively produce sector-specific Fair Pay Agreements that specify a range of minimum conditions. 

Singapore 

The Ministry of Manpower together with its tripartite partners will continue to issue a significant number of advisories and guidelines particularly in connection with the Covid-19 crisis. 

For 2021, the National Wages Council (NWC) reiterates its recommendation that employers give special consideration to low-wage workers and recommends that for employers implementing a policy of wage reduction, they should instead implement a wage freeze for low-wage workers earning a basic monthly wage of up to S$1,400. 

Foreign nationals in the technology sector in Singapore can also apply for a Tech. Pass administered by the Singapore Economic Development Board (EDB), subject to meeting the relevant eligibility criteria from 1 January 2021. 

Vietnam 

A new Labour Code Vietnam came into effect on 1 January 2021 and whilst not all of the Decrees and Circulars to implement the new Labour Code have been issued, there are various notable changes to previous labour law, such as follows: 

  • An additional ground for applying dismissal as a form of labour discipline has been added under the new Labour Code
  • The new amended Code offers better protection for employees and is better aligned with international practices. 
  • Key provisions of the new Code are working hours, labour contracts, termination, unions, retirement age, and discrimination. 
  • Other changes include that the Vietnamese government will not regulate salary policies at individual companies, but rules on minimum wages must be followed. 

Thailand 

According to the new Ministerial Regulation, employers are subject to various provisions relating to the provision of ‘health examinations’ (as defined in the Ministerial Regulation) in respect of any of their employees who ‘work with risk factors’. ‘Work with risk factors’ includes works relating to certain hazardous chemicals, radiation and environments that might be detrimental to the health of employees.

Employers might also now temporarily halt their business operation, whether in whole or in part, due to a necessary event that affects the operation of the employer and causes the business to operate not on a usual basis. The employer can notify the labour inspector of its temporary business closure both in writing and via electronic means.

For the details of the report, please visit dlapiper.com

Read also: Vietnam’s Employees Data Privacy & Protection Law

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