Legal lowdown

20 April 2016

Author: Pattie Walsh


Legal update: Sarah Lawrence, senior legal consultant at DLA Piper in Dubai, gives an overview of legislation and case law HR professionals should be aware of

Pattie Walsh, partner in the international employment group at Bird & Bird, gives an overview of the latest legislation and advice affecting HR professionals

Inappropriate behaviour – and the return of the unions
 
In uncertain financial times, reducing the labour bill (or at least ensuring it is tightly managed and delivers to its maximum potential) is often a priority. China is currently experiencing an upturn in restructuring and reorganisations, with a general aim of reducing staff costs in various disciplines and roles. However, this is not limited to China: employers across Asia have been looking at how they could adapt their strategies to limit hiring and actively reduce numbers.
 
Along with growing instability in the workplace, we are seeing the rise of the collective agenda, with trade unions and collective obligations becoming increasingly important. When individuals feel the future may be uncertain, they often look for support from organisations outside of their employer. The union drive in China has become a hot topic in recent years but, interestingly, Singapore is also reporting a visible rise in trade union activity.
 
With the globalisation of the trade union movement and Asia’s position at the forefront of news and comment on the importance of labour law protection and the very public assessment of human rights violations, the collective influence agenda is likely to become more and more relevant in the coming months and years.
 
Inappropriate behaviour has also moved up the employment law agenda in Asia and this is expected to continue. It has included broadening the categories of characteristics that receive enhanced protection in the area of discrimination. For example, protection against discrimination on the basis of race was only introduced in Hong Kong in 2008. However, there is now debate about whether this protection should be extended to include discrimination on the basis of nationality, citizenship and residence.
 
In India, the introduction of legislation at the end of 2013 to protect women from sexual harassment at work has brought with it an increased degree of regulation, including obligations for employers to train the workforce and to establish internal committees to deal with allegations of sexual harassment.
 
In Singapore, the Ministry of Manpower, National Trades Union Congress and Singapore National Employers Federation have issued a Tripartite Advisory on Managing Workplace Harassment to help employers and employees working through the complexity and challenges of this topic.
 
Practical steps for employers to help navigate these challenges include:
  • Ensure all employment contracts and policies are regularly reviewed and kept relevant from a compliance and protection point of view.
  • Avoid creating inadvertent contractual obligations through custom and practice; for example, by regularly and consistently enhancing redundancy terms. 
  • Focus on implementing performance management as a priority so that employees who are not delivering can be exited from the business without the additional costs of redundancy payments, etc. 
  • Implement a programme of training to ensure that all staff are fully aware of what is acceptable and unacceptable behaviour. Senior leaders are often the biggest culprits, so make sure that all those who have the ability to create risks to the business are included.
  • Take a strategic look at your industrial relations policy. If unionisation and a greater level of collective engagement is inevitable, ensure that this is managed to include a focus on training those who will have to negotiate collective terms.