ASIA PACIFIC EMPLOYMENT LAW UPDATE 2021/2022
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Changes across the region
Welcome to Herbert Smith Freehills’ Asia Pacific Employment Law Update 2021. Our employment law team brings you an interactive update of the key changes to employment laws across the region, as well as our outlook for 2022. This update complements our Asia Pacific Employment Law Guide 2021/2022, which provides a more detailed analysis of key employment law considerations.
HONG KONG
australia
NEW ZEALAND
bangladesh
Brunei
Cambodia
INDIA
Indonesia
JAPAN
LAOS
Macau
MALAYSIA
MONGOLIA
MYANMAR
PHILIPPINES
China
SINGAPORE
SOUTH KOREA
SRI LANKA
THAILAND
TAIWAN
VIETNAM
Head of Employment, Pensions & Incentives, Asia
+65 68689822
Email
FATIM JUMABHOY
LinkedIn
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Senior associate, Employment, Pensions and Incentives
+65 6868 8063
REBECCA LIM
Key contacts
© Herbert Smith Freehills 2021
This update has been prepared by Herbert Smith Freehills' APAC employment law team, with the assistance of our local counsel partners across the region. Click here for a full list of contributors.
BANGLADESH
BRUNEI
indonesia
cambodia
mongolia
malaysia
macau
new zealand
myanmar
south korea
singapore
CHINA
thailand
taiwan
sri lanka
Employment Law by Jurisdiction
A view from AUSTRALIA
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Changes to casual employment
In Australia, the main types of employment are full-time employment, part-time employment and casual employment. A key difference between casual employment and permanent employment is the entitlements which employees are given. Permanent employees receive paid annual leave and paid sick leave, whereas casual employees do not. Instead, casual employees receive a casual loading, which is usually an additional 25% on top of an ordinary hourly rate. As casual employment was not previously defined in legislation, whether an employee was a true casual, and therefore not entitled to receive certain entitlements, has been a constantly evolving point of law. Some employees have successfully argued that whilst they were employed pursuant to a casual contract, they had actually been working as permanent employees and are therefore entitled to back-pay for the entitlements they did not receive. This was the case in the landmark Federal Court decision of WorkPac Pty Ltd v Rossato where Mr Rossato successfully argued that even though he was employed as a labour hire casual working in the mining industry, he was actually working as a permanent employee and was therefore entitled to receive back payment. The case was appealed by WorkPac and is currently before the High Court of Australia. On 27 March 2021, a definition of casual employment was inserted into the Fair Work Act 2009 (Cth), which is the key piece of federal legislation that governs employment across Australia. The new definition states that a person is a casual employee if:
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Key trends and upcoming challenges
The Australian Government is actively encouraging vaccination against COVID-19 but to date, has not made vaccination a mandatory requirement. Employers can encourage employees to undergo vaccination and depending on the nature of an employee’s work, may be able to make vaccination a condition for access to the place of employment, where such a condition is a “lawful and reasonable direction”. A recent tribunal decision held that a worker’s dismissal for refusing the flu vaccination was not unfair, and that her employer was entitled to dismiss her from her role in a childcare centre. Whilst there is yet to be any judicial guidance on the COVID-19 vaccination, the FWC’s decision that termination for failure to accept the flu vaccination was lawful, may be an indication of the approach that will be taken to the COVID-19 vaccination.
Covid-19 Vaccination
There is no restriction under the Australian employment law which prevents an employee from being engaged by an overseas entity. However, restrictions or implications may arise under other legislation, including migration and taxation legislation. In particular, employees must have appropriate working rights to work in Australia, and the presence of employees in Australia may have implications for whether an overseas employer entity is subject to Australian tax.
Cross-border agile working
a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and b) the person accepts the offer on that basis; and c) the person is an employee as a result of that acceptance.
To determine whether, at the time the offer is made, an employer makes no “firm advance commitment” to continuing and indefinite work, regard will only be had to:
a) whether the employer can elect to offer work and whether the person can elect to accept or reject work; b) whether the person will work as required according to the needs of the employer; c) whether the employment is described as casual employment; d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer.
The question of whether a person is a casual employee will be assessed on the basis of the offer of employment and the acceptance of that offer, and not on the basis of any subsequent conduct of either party. The Fair Work Act 2009 (Cth) was also amended on 27 March 2021 to address the situation where an employee described as a casual is subsequently found to be a permanent employee and brings a claim in respect of their permanent employment entitlements. The question of whether the casual loading received by the employee could be off-set against these entitlements due to the employee was considered in Workpac. The legislative amendment has the effect of requiring the Court to reduce the amount of any payments in respect of permanent employment entitlements by the amount of the casual loading.
In response to a number of high-profile allegations of underpayment of employee wages and entitlements, some jurisdictions across Australia have introduced legislation regarding wage theft. In June 2020, Victoria was the first state to enact laws establishing criminal penalties for employers who deliberately underpay or do not pay their staff. Under the new legislation, which is set to come into effect in July 2021, the following will constitute offences liable for monetary fines of up to $198,264 for individuals, $991,320 for companies or imprisonment for up to 10 years:
• dishonestly withholding wages, superannuation and other employee entitlements; • falsification of employee entitlement records such as payroll records to dishonestly obtain or cover up a financial advantage; and • failing to keep employment records to dishonestly obtain or cover up a financial advantage.
While corporate employers and company officers are the principal bearers of liability for wage theft offences, liability extends to others complicit in the commission of these offences, potentially including franchisors who are involved in offences committed by franchisees. If an employer or an officer of a company is able to prove that due diligence was exercised by taking reasonable steps in order to prevent the wage theft from occurring, this can be a defence to liability. Accordingly, employers should focus on implementing processes and procedures to prevent instances of wage theft occurring. Following Victoria’s lead, similar laws have now been enacted in the state of Queensland.
Underpayments and introduction of “Wage Theft” legislation
In January 2020, the Australian Human Rights Commission issued a report entitled Respect@Work: A National Inquiry into Sexual Harassment in Australian Workplaces. The Respect@Work Report contained 55 recommendations, including in relation to:
• the prevalence, nature and reporting of sexual harassment in Australian workplaces; • the current legal framework; • existing measures to address sexual harassment and examples of good practice; and • impacts of sexual harassment on individuals and the economic impacts on businesses.
In April 2021, the Australian Government released the Roadmap for Respect in response to the Respect@Work Report, announcing that all 55 recommendations were either agreed wholly, in part or in principle, or noted. The Roadmap seeks to establish a blueprint for proactive steps to eradicate sexual harassment. The Respect@Work Report recommended changes to the Sex Discrimination Act 1984 (Cth), the key existing sexual harassment legislation, namely by broadening the objectives of the legislation and imposing a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination and sexual harassment. The Respect@Work Report also recommended changes to the Fair Work Act 2009 (Cth) to clarify that sexual harassment can provide a valid reason for dismissal, and amendments to the Fair Work Regulations 2009 (Cth) to include sexual harassment within the definition of ‘serious misconduct’, enabling employers to dismiss an employee immediately when an allegation of sexual harassment is substantiated. SafeWork Australia, the national workplace health and safety regulator, has produced guidance on how to identify risks of sexual harassment occurring, which includes:
#MeToo and new laws regarding workplace sexual harassment
• assessing the physical work environment (such as areas of the workplace which limit movement and require close employee proximity) and the online working environment (assessing security settings and social media usage at work); • considering work systems and practices – e.g. workers working overtime with minimal supervision; • observing workplace culture and ensuring sexual harassment is not accepted as normal behaviour; and • identifying trends and reviewing grievance data.
Employers, as part of a good health and safety management system, should develop policies and procedures which form part of the sexual harassment prevention strategy. Policies should be developed which outline the standards of behaviour and procedures for what workers should do if they experience or witness sexual harassment and how it can be reported. For work-related events, particularly where alcohol will be served, it is crucial that employers reinforce workplace policies and reiterate the behaviours that are expected of workers and the behaviour that will not be tolerated.
A view from BANGLADESH
It is possible for a non-Bangladesh entity to engage an individual who is performing work in Bangladesh as an independent contractor or consultant. Foreign employees will require a work permit in order to lawfully work in Bangladesh. The employment will generally be subject to tax and pension social security laws and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination, health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
Amongst the key changes introduced are:
• a worker may be required to work on a festival leave but for every such leave, the employer is required to provide the worker with one substitute holiday and two days’ pay; • even if a female worker only gives notice of maternity leave after the birth of her child, she is still entitled to maternity benefits in respect of the eight weeks immediately following the date of her delivery; and • the Labour Court is required to issue their judgment within 60 days from the date on which the case is referred to it. Beyond this period, the Labour Court will be required to record the reason for not delivering their judgment within the 60-day timeframe and take a maximum of another 90 days to deliver its judgment.
Changes introduced by the Bangladesh Labour (Amendment) Act 2018
A view from BRUNEI
It is possible for a non-Brunei Darussalam entity to engage an individual who is performing work in Brunei Darussalam. Foreign employees will require an employment visa from the Department of Labour through an approved employment agency in order to lawfully work in Brunei Darussalam. The employer will also have to apply for a labour quota(s) that permits them to employ foreign employees. The employment may be subject to withholding tax in specific circumstances and will generally be subject to pension/social security fund contributions and must comply with relevant labour and related laws (such as those relating to employment rights, discrimination, health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
Key trends and challenges
A view from CAMBODIA
Employment of foreigners
Employers in Cambodia are generally subject to a quota for employing foreigners. The quota is capped at a maximum of 10% of the total number of Cambodian employees employed by an entity. However, pursuant to Prakas No. 277/20 dated 14 August 2020, employers may submit a request to the Ministry of Labour and Vocational Training (MLVT) to employ foreigners beyond the permissible quota if they are unable to hire suitably qualified Cambodian citizens.
Employees in Cambodia are now required to undergo a physical examination prior to starting work and to re-take such examination every two years. Additional or special examinations may be required for certain “high risk” or other occupations. The physical examination may be undertaken by the Department of Occupational, Safety, and Health (DOSH) or by a health facility. An employee will be issued (for examinations done by the DOSH) or the employer may request (for examinations done by a health facility) a Physical Examination Certificate. The cost of the physical examination must be borne by the employer.
Physical Examinations
It is possible for a non-Cambodian entity to engage an individual who is performing work in Cambodia. Foreign employees will require a non-immigrant visa in order to lawfully work in Cambodia. The employment will generally be subject to tax and pension/social security contributions and must comply with relevant labour and related laws (such as those relating to employment rights, discrimination, health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
A view from Hong Kong
Health and safety
Penalties under Hong Kong safety laws have not been revised for over 20 years and the Government has expressed concern that the current penalties do not appropriately reflect the seriousness of the offences committed by duty holders nor act as an adequate deterrent. The Government has acknowledged that current penalties (the current maximum fine is HK$500,000) are far lower than in many other common law jurisdictions. The Government has submitted proposals to raise penalties under safety legislation, particularly in cases of extremely high culpability or serious negligence. Preliminary proposals include increasing the maximum fine of the general duty provisions to HK$6 million or 10% of the turnover of the convicted company, whichever is greater but subject to a maximum fine capped at $50 million. Ongoing consultation with stakeholders is occurring and the amended legislation is anticipated to be finalised later this year.
Four years on from the #metoo movement, we continue to see an increase in workplace harassment complaints in Asia. In Hong Kong, the Equal Opportunities Commission has stepped up work on workplace harassment and last year set up a New Sexual Harassment Unit to deal with harassment enquiries. This year we expect to see complaints arising from new protections that came into effect in June 2020 against sexual, racial and disability harassment in “common workplaces” by parties beyond employees, such as customers, clients, third-party contract workers, agents, interns, volunteers and others in a co-working space. Discrimination on the grounds of the race of an “associate” and direct and indirect racial discrimination and harassment by imputation that a person is of a particular race or is a member of a particular racial group are also now unlawful. From 19 June 2021, discrimination on the ground of breastfeeding will become unlawful.
Harassment and discrimination
On 20 January 2020 a consultation paper proposing possible amendments to the Personal Data (Privacy) Ordinance (Cap. 486) (PDPO) was published. These amendments include possibly introducing a mandatory data breach notification mechanism, requiring data users to specify a retention period for personal data collected, raising the sanctioning powers of the Privacy Commissioner as well as potentially making data processors more accountable. Legislative amendment proposals are being studied with a view to drafting am amendment bill after further consultation with stakeholders later this year.
Data protection
In March 2021, the Government gazetted the Employment (Amendment) Bill 2021 which includes proposed amendments to the EO so that, from 2022 to 2030, five statutory holidays (most commonly referred to as “public holidays”) will progressively be added. Currently, there are 12 statutory holidays, although many employers already provide employees with 17 general holidays even where they are not required to do so as they are not a bank, educational establishment, public office or Government department. By 2030, the five additional general holidays will also be statutory holidays. These five additional statutory holidays are:
Changes to statutory holidays
• the Birthday of the Buddha (starting from 1 January 2022); • the first weekday after Christmas Day (starting from 1 January 2024); • Easter Monday (starting from 1 January 2026); • Good Friday (starting from 1 January 2028); and • the day following Good Friday (starting from 1 January 2030).
In 2016 the Government first proposed to gradually abolish the mechanism which allows employers to offset severance and long service payments against employer’s contributions to the Mandatory Provident Fund and other retirement schemes. While little progress on this has been made, the Government recently stated that it seeks to press ahead with this agenda. The Government indicated it plans to introduce the bill which would reduce the offsetting mechanism in the 2022 term of the Legislative Council, with a view to securing its passage and implementing the abolition of offsetting in around 2025. Employers can continue to monitor this proposal.
Abolishing offsetting of severance
It is possible for a non-Hong Kong entity to engage an individual who is performing work in Hong Kong. The individual will require a Hong Kong permanent identity card or an appropriate visa in order to lawfully work in Hong Kong. The employment will generally be subject to salaries tax and Mandatory Provident Fund contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
A view from INDIA
Labour Codes
The Central Government recently replaced 29 labour laws with four codes (Labour Codes):
It is possible for a non-Indian entity to engage an individual who is performing work in India. Such engagement is mostly in the capacity of a consultant. Foreign employees will require an appropriate employment visa (and residential permit) to lawfully work in India. The employment will generally be subject to tax and pension/social security contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination, health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
• Code of Wages, 2019 (COW); • Industrial Relations Code, 2020 (IRC); • Social Security Code, 2020 (SSC); and • Occupational Safety, Health and Working Conditions Code, 2020 (OSH).
The key changes are as follows. Definition of 'wages'
• the Labour Codes will introduce a single, uniform definition of 'wages' applicable to all employees regardless of their wages, type of employment or sectors. 'Wages' is defined as all remuneration including basic pay, dearness allowance and retaining allowance, but does not include 11 types of other payments, including bonus payable under any law, house rent allowance and overtime allowance. If the payments excluded exceed 50% of the remuneration, the amount which exceeds such 50% deemed will be ‘wages’. Additionally, where an employee is given remuneration in kind in lieu of either the whole or part of their wages, the value of such remuneration is deemed to form part of 'wages', but with a cap of 15% of total wages payable.
Employee entitlements
• provident fund contributions will be reduced from 12% to 10%. However, with the new definition of 'wages', where an employee's basic pay, dearness allowance and retaining allowance comprise less than 50% of an employee's total remuneration, the 'wages' for calculating provident contributions will increase. • gratuity payments will now be extended to employees on fixed term contracts on a pro rata basis. • while the Labour Codes do not go so far as providing entitlement to social security protections for gig workers, the SSC provides that the Central Government and State Government may implement suitable social security schemes for such workers.
Employee categories
Lay-off, retrenchment and closure
• Industrial establishments with 300 or more workers will be required to obtain prior permission from the government for lay offs, retrenchments or closure of an industrial undertaking (an increase from the previous 100 threshold).
• The IRC 2020 will apply to “workers”. The definition of a “worker” has been expanded to include:
• Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955; • sales promotion employees as defined in the Sales Promotion Employees (Conditions of Service) Act, 1976; and • persons employed in a supervisory capacity and earning less INR 18,000 per month.
A view from INDONESIA
Job Creation Law
Law No. 11 of 2020 (the Job Creation Law) came into effect on 2 November 2020. The Indonesian government has also issued implementing regulations to guide the implementation of the Job Creation Law. Amongst the key changes to note are:
It is possible for a non-Indonesian entity to engage an individual who is performing work in Indonesia. Foreign employees will require a stay permit in order to lawfully work in Indonesia (and a work permit if the individual is employed by an Indonesian entity). The employment will generally be subject to tax and pension/social security contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination, health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the employing entity, the line of business of the employer, the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues, such as permanent residency, that arise.
• fixed term employment contracts may now be executed for a term of up to five years (including any extension). There is no limit on the number of extensions as long as the total period, including the extensions, does not exceed five years; • employers are required to pay compensation upon the expiry of a fixed term employment contract (and expiry of each extension of the contract) or upon early termination. • the employment agreement, company regulations or collective labour agreement must specify which roles are excluded from overtime payments. If not expressly stipulated, no exemption will apply, and the employee will be eligible to receive overtime pay. • an employer is required to provide notice of termination in writing (except for termination due to serious misconduct). The notice must set out the reason for termination, as well as termination payments and other entitlements due to the employee; • there is now a multiplier of x0.5, x0.75, x1, x1.75 or x2 to the severance pay, depending on the reasons for the termination; and • there is no longer an entitlement to housing, medication and medical treatment compensation upon termination of employment.
A view from JAPAN
Equal employment opportunity
Under the Act on Employment Promotion etc. of Persons with Disabilities, employers must hire a certain number of disabled employees, which should constitute at least a certain percentage of the total workforce. Starting from 1 March 2021, the percentage threshold has been increased (from 2.2 percent to 2.3 percent for private companies)."Disabled employees" include persons with physical or intellectual disabilities and mental disorders. Pursuant to the Law, if an employer fails to meet the percentage threshold, they must pay a contribution in the amount of JPY 50,000 per month to the Japan Organisation for Employment of the Elderly and Persons with Disabilities for each disabled person whom the employer should have employed. However, employers hiring fewer than or equal to 100 permanent employees will be exempted from such mandatory contribution.
The Act on Improvement of Personnel Management and Conversion of Employment Status for Part-Time Workers and Fixed-Term Workers has been amended to afford more protection to prevent unjustified differential treatments by employers against irregular workers (which include part-time workers, fixed-term workers, and temporary workers). In particular, Article 8 of the Act now provides that an employer must not create unreasonable differences in working conditions between regular and irregular workers. The article also sets out several factors which should be taken into account when determining reasonableness, such as the content of the duties, the level of responsibility and the differences in job descriptions and assignments. The amendments took effect on 1 April 2020, with the exception of small and medium-sized businesses, which needed to comply with the new rules starting from 1 April 2021.
Protection of "irregular employees"
The Ordinance for Enforcement of the Act on Childcare Leave, Caregiver Leave and Other Measures for the Welfare of Workers Caring for Children or Other Family Members has been amended to provide for more flexibility to employees who need to take leave to take care of their family. Prior to 1 January 2021, employees could only take family-care leave on either a full-day or a half-day basis. The new amendments provide that employees now have the option to take such leave on an hourly basis starting from 1 January 2021, although such hourly leave must either commence from the employee's usual daily start time, or end at their daily finish time. The amendments also apply to employees that work for four hours or less per day, who were previously not entitled to any half-day family-care leave.
Family-care leave
It is possible for a non-Japanese entity to engage an individual who is performing work in Japan. The individual will require a Japan permanent identity card or an appropriate visa in order to lawfully work in Japan. The employment will generally be subject to salaries tax, unemployment insurance and social insurance and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
A view from Laos
It is possible for a non-Lao entity to engage an individual who is performing work in Laos. Foreign employees will require a non-immigrant visa and a stay permit to lawfully work in Laos. The employment will generally be subject to tax and pension/social security fund contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
Pursuant to Notification No 1559/MLSW, 1 June 2020 and Notification No 1532/MLSW, 5 May 2021 (Notices) issued by the Ministry of Labour and Social Welfare (MLSW), an employer may only adjust the employment terms of employees (whether individually or collectively) if: (i) the COVID-19 outbreak has impacted the employer; and (ii) the employer has already consulted and negotiated with the employee(s) with an aim of reaching a compromise in accordance with procedures set out in the Decree on Labour Conflict Resolution (No 76/GO, 28 February 2018). As such, an employer cannot unilaterally amend employment terms and conditions by, for instance, adjusting an employee's salary or forcing them to take paid or unpaid leave. If an employer wishes to adjust the employment terms and conditions, it must first reach a written agreement with the employees or, failing which, a compromise with the employees per the Notices and the Decree on Labour Conflict Resolution (No 76/GO, 28 February 2018). Such a compromise must be recorded in writing in the form of an amendment to the employment agreement.
Amendments to Employment Terms
A view from macau
Minimum wages
The Macau Legislative Assembly passed the Law 5/2020 – employees' minimum wage (Minimum Wage Law) which came into force on 1 November 2020. Under the Minimum Wage Law, employees who:
It is possible for a non-Macau entity (OS Entity) to engage an individual to perform work in Macau. Foreign employees will have to be either a Macau SAR resident or a Macau SAR non-resident worker duly authorised to perform work for the OS Entity by Macau authorities. The employment will generally be subject to Macau laws, including tax and pension/social security contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination, health and safety, employee compensation, etc.), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
• receive monthly wages, the minimum wage is MOP6,656.00/month; • receive weekly wages, the minimum wage is MOP1,536.00/week; • receive daily wages, the minimum wage is MOP256.00/day; • receive hourly wages, the minimum wage is MOP32.00/hour; • are paid based on the number of hours effectively worked on the respective month, the minimum wage is an average of minimum MOP32.00/hour, which is calculated based on the monthly salary by the hours effectively worked in a month.
The applicable minimum wage is subject to review once in every two years and will be updated depending on the economic development of Macau SAR. An employer who fails to comply with the Minimum Wage Law will be subject to a fine of MOP20,000 to MOP50,000 per employee.
Compensation for work on weekly rest days Employees who perform work on a rest day are entitled to:
Compensation for work during rest days or statutory public holidays
• one day as an alternative holiday to be enjoyed within three months after the statutory public holiday and one day's basic wages; • two days' basic wages; or • two days as alternative holidays to be enjoyed within 3 months after the statutory public holiday.
Compensation for work on statutory public holidays Employees who perform work on a statutory public holiday are entitled to:
• two additional rest days to be enjoyed within 30 days; or • one additional rest day to be enjoyed within 30 days and one day's basic wages.
However, for work on weekly rest days or statutory public holidays, if the employee only works part of the day for personal reasons, the compensatory rest day or wages is calculated in proportion to the number of hours worked. Compensation for overlapping of weekly rest day with a statutory public holidays If a statutory public holiday falls on a weekly rest day, an employee is entitled to have an alternative rest day within 30 days, to be scheduled by the employer. This compensatory rest day cannot be waived by the employee, even by agreement with the employer.
Maternity leave A female employee's entitlement to maternity leave has been increased from 56 to 70 days, 63 of which must be taken immediately after delivery. The remaining days may be taken, wholly or partly, before or after childbirth. For local employees, 14 out of 70 days are paid by the government. For non-locals, the employer must bear the entirety of wages during maternity leave. Paternity leave A male employee who has more than 1 year of work on the day of birth is entitled to five days' paid paternity leave, which can be taken either consecutively in one block or separately since the mother completes three months pregnancy and up to thirty days after the child’s birth.
Maternity/paternity leave
Law No 7/2008 was amended by Law No 8/2020 which came into effect on 26 May 2020. The amendments pertaining to severance pay. If an employer terminates an employment contract with or without cause, the employee is entitled to a severance payment calculated based on the employee's length of service. The maximum monthly base pay used to calculate severance pay has been increased to MOP21,000.
Severance pay
A view from Malaysia
Amendments to the Industrial Relations Act
With effect from 1 January 2021, the Industrial Relations (Amendment) Act 2020 has come into force. The key changes to note include: Direct referral of representations for dismissal without just cause or excuse to the Industrial Court The Director General of Industrial Relations (DGIR) must refer representations for dismissal without just cause or excuse under section 20 of Industrial Relations Act 1967 (IRA 1967) directly to the Industrial Court if they are satisfied that there is no likelihood of the matter being settled through conciliation. There will no longer be a need for the Minister of Human Resources to decide whether to refer an unresolved representation. Representation during conciliation A party may, with the written approval of the DGIR, appoint any person (except an advocate and solicitor) to represent them during conciliation under section 20 of the IRA 1967. Appeal mechanism A party who is unsatisfied with an award by the Industrial court can file an appeal to the High Court within 14 days from the date of the receipt of the award. The recourse against an Industrial Court award will no longer be by way of judicial review nor by reference of a question of law under section 33A of IRA 1967. Determining a reference notwithstanding the dispute over the workman’s date of dismissal The Industrial Court may hear and determine a reference under section 20 of IRA 1967 notwithstanding that there is a dispute over the workman’s date of dismissal. The date of dismissal set out in the Minister’s reference letter will no longer be a ground to challenge the jurisdiction of the Industrial Court to determine a reference to it under section 20 of IRA 1967.
Proceedings can continue even if the workman passes away Where a workman who has lodged a representation under section 20 of IRA 1967 passes away, the Industrial Court can continue to conduct its proceedings to determine if the workman was dismissed without just cause or excuse and award backwages or compensation in lieu of reinstatement or both, to the next-of-kin of the deceased workman.
It is possible for a non-Malaysian entity to engage an individual to perform work in Malaysia. Foreign employees will require a Malaysian permanent identity card or an appropriate visa/employment pass in order to lawfully work in Malaysia. The employment will generally be subject to tax and pension/social security contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
A view from Mongolia
A draft bill of the restated Labour Code, if enacted, will introduce the following changes: Employment relationship An employment relationship will be deemed commenced upon oral agreement of the main terms of employment. Employers must provide the employee with a written agreement within 10 days of the employment commencing. Remote working For employees working remotely, a telework agreement is required containing specific provisions, including place/location of work, duties, time period and method of delivery of the work performed and the amount of reimbursement to be paid by an employer for use of the employee’s property and equipment. Similar rules apply for employees working permanently from home. Shift hours Standard shift hours should not exceed eight hours, but an employee and employer may agree to extend a shift to up to 12 hours. Roster arrangement for mining jobs Roster arrangements are capped at 14 working days per month with 14 rest days.
New Labour Code Bill
It is possible for a non-Mongolian entity to engage an individual who is performing work in Mongolia. Foreign employees will require a non-immigrant visa in order to lawfully work in Mongolia. The employment will generally be subject to tax and pension/social security contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination, health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
A view from Myanmar
It is possible for a non-Myanmar entity to engage an individual who is performing work in Myanmar. Foreign employees will require a valid business or employment visa in order to lawfully work in Myanmar. The employment will generally be subject to salaries tax and pension/social security contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination, health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
A view from NEW ZEALAND
Holidays legislation
The minimum number of days of paid sick leave available to eligible employees has increased to 10 per year. The New Zealand Government has also proposed further changes to holidays legislation:
While it is possible for a non-New Zealand entity to engage an individual who is performing work in New Zealand (subject to applicable legislative requirements regarding business registration), it is common for non-New Zealand entities to set up a New Zealand entity for the purpose of doing business in New Zealand. An individual will require an appropriate visa or residency in order to lawfully work in New Zealand. Employment in New Zealand will generally be subject to relevant labour and related laws (such as those relating to employment rights, privacy, discrimination, health and safety, tax etc.). There may be other tax, corporate and regulatory issues that arise.
• From 2022, a new public holiday, Matariki, will be created. In 2022, this will fall on 24 June. Legislation to give effect to the new holiday will be introduced later in 2021. • The Government has agreed in principle to substantial changes to holidays legislation. These are intended to create clearer and more transparent rules around determining, calculating and paying holidays and leave entitlements, and to increase access to some leave entitlements (for example, employees will be able to take paid sick, bereavement and family violence leave from the commencement of employment). Legislation to give effect to the changes is expected to be introduced in 2022.
The New Zealand Government has announced that it will implement Fair Pay Agreements, which will set minimum binding standards, including minimum wage rates, ordinary hours, overtime, and penalty rates, within specific industries or occupations. In addition, it will be mandatory for parties bargaining for a Fair Pay Agreement to discuss (but not agree) various other matters, including redundancy, leave requirements, and flexible working. Legislation is expected to be introduced in late 2021, with a view to the legislation being passed in 2022.
Fair pay agreements
In 2020, amendments were made to the Equal Pay Act 1972 to create a process to make it easier for workers to raise pay equity claims, which are claims that there is systemic sex-based pay undervaluation in an occupation that is currently, or has been, predominantly performed by women.
Equal pay
The Privacy Act 2020 came into force in December 2020. Key changes include the introduction of a mandatory notification regime for privacy breaches and stronger protections for the transfer of personal information overseas.
A view from Philippines
Efforts to amend Republic Act No. 10173 or the Data Privacy Act of 2012 (DPA) are underway. In a press release published by the National Privacy Commission (NPC) on June 25, 2021, it was announced that the House of Representatives – Committee on Information and Communications Technology had approved the substitute bill to amend the DPA last February 4, 2021. The substitute bill is yet to be finalized and approved by the House of Representatives and the Senate. Among the salient points of the bill are the following:
• grant of additional powers to the NPC including the authority to issue summons, subpoenas, contempt powers and to impose administrative penalties; • redefines “sensitive personal information” to include biometric and genetic data, and political affiliation, considering the innate sensitivity of these classes of personal data; • clarification on extraterritorial application of the DPA; • define the digital age of consent to process personal information to more than 15 years; • inclusion of performance of a contract as a new criterion of the lawful basis for processing of sensitive personal information; • allowing Personal Information Controllers (PICs) outside of the Philippines to authorise Personal Information Processors (PIPs) in the country to report data breaches to the NPC on behalf of the controller; and • modifying criminal penalties under the DPA, giving the proper courts the option to impose either imprisonment or fine upon its sound judgment.
There is no legal or regulatory framework for non-Philippine entities (ie entities without legal presence in the Philippines) to engage individuals performing work in the Philippines as employees. There are laws imposing obligations to employers which require registration with Philippine government agencies, which in turn entail setting up a legal entity in the Philippines. It is possible for non-Philippine entities to engage an individual who is performing work in the Philippines as an independent contractor or consultant. We note the following:
• the engagement and designation of the worker as an independent contractor or consultant does not conclusively determine their status and negate an employment relationship; and • the engagement of an independent contractor may give rise to “doing business” issues even where the services are directed outwards, especially where the services rendered by the independent contractor is revenue-generating. This is because the performance of such services may broadly constitute work functions which are “normally incident to, and in progressive prosecution of commercial gain or of the purpose and object of the business organisation”, which is covered by the definition of doing business under the Foreign Investments Act. A foreign corporation doing business in the Philippines without a license and its responsible officers may be subject to penal and administrative sanctions. Further, it cannot sue but may be sued in the Philippines.
A view from CHINA
Protection for dispatched employees and employment sharing
On 30 September 2020, the General Office of the Ministry of Human Resources and Social Security issued a Circular on Working Effectively on Guidance and Services for Shared Employment, which regulates the rights and obligations of different stakeholders under employment sharing arrangements. The Circular expressly allows the sharing of employees between companies that require employees and those with a surplus of employees, and affords protection for the dispatched employees. For instance, the Circular:
It is possible for a non-PRC entity to engage an individual who is performing work in PRC via a local HR service company. The individual will require a PRC identity card or PRC permanent resident card in order to lawfully work in PRC. The employment will generally be subject to individual income tax, social insurance and housing fund contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
• provides that employee consent is required for the shared employment arrangement; • prohibits companies from re-assigning dispatched employees to work for other companies in the name of employment sharing; and • requires companies sharing employees to sign a cooperation agreement, which should set out the terms and conditions of the shared employment arrangement, such as work content, rest periods, labour protection conditions, and pay standards.
As businesses become increasingly technology-driven and dependent on information and know-how, there have recently been numerous legislative developments concerning trade secrets. Following the amendment of the Anti-Unfair Competition Law in 2019, which increased protection for holders of trade secrets, the State Administration for Market Regulation issued the Draft Provisions on Protection of Trade Secrets in September 2020, broadening the scope of "business information" to include "any type and form of information related to business activities, including, but not limited to, technical information and operational information”. In the same month, the Supreme People’s Court issued a judicial interpretation on trade secret disputes, which provides for further guidance on the application of trade secret law. Notably, the judicial interpretation expressly stipulates that customer information, such as name, contact information, and transaction habits, is a trade secret. The judicial interpretation also lists out certain measures which, if taken by a company, will automatically lead to the conclusion that the relevant information constitutes trade secret. Examples of such measures under the judicial interpretation include signing a confidentiality agreement; imposing confidentiality requirements on employees by notice; or restricting the use of electronic devices that may contain trade secrets.
Misuse of trade secrets by former employees
Following the #MeToo movement in mainland China and the high profile sexual misconduct claim by a young woman against Zhu Jun, a famous television presenter, the new PRC Civil Code came into effect on 1 January 2021, introducing new principles governing sexual harassment claims. What is worth highlighting is that Article 1010 of the new Civil Code provides for a definition of "sexual harassment" for the first time and extends the scope of protection to men. The new Civil Code also states that employers have a duty to take reasonable steps to prevent sexual harassment and a duty to implement a system for receiving, investigating and handling complaints.
Sexual harrassment
A view from SINGAPORE
Mandatory retrenchment notification
From 1 November 2021, employers with at least 10 employees are required to notify the Ministry of Manpower for retrenchments, regardless of the number of employees affected (previously, the notification requirement kicks in only where at least five employees are retrenched within any six-month period). The notification must be made within five working days after the affected employee is notified of the retrenchment.
The Monetary Authority of Singapore (MAS) issued a consultation paper in 2018 to seek views on proposals to mandate reference checks for representatives and broking staff conducting regulated activities under the Securities and Futures Act, Financial Advisers Act and Insurance Act. A further consultation paper was issued in May 2021 which broadened the scope of employees who are subject to the reference check requirements. The MAS also issued the Information Paper: Good Practices Relating to Disciplinary Action Framework in the Financial Advisory Industry (Paper) in March 2021 to provide guidance to financial advisers on sound principles in key areas of their disciplinary actions (DA) framework. Although the Paper is meant to apply to financial advisers serving retail customers, other employers in the financial services industry are encouraged to take guidance from the Paper and adapt them as necessary to suit their needs.
Updates for employers in the financial sector
Employers with at least 10 employees are required to advertise jobs on MyCareersFuture prior to submitting any Employment Pass or S Pass applications. The advertisement must be open for at least 28 days and applies to roles with a fixed monthly salary of below SGD$20,000. Additionally, the minimum salary requirements for Employment Pass and S Pass applications have been increased:
Employment of foreign employees
A bill to amend the Child Development Co-Savings Act (CDCSA) was tabled in Parliament in July 2021. If the bill is passed, employers will be allowed to claim reimbursements from the Government where they voluntarily grant parental leave (ie maternity, paternity or adoption leave) to an employee even though the employee has not met the minimum service period requirements. Government-Paid Paternity Benefit (GPPB) and Government-Paid Adoption Benefit (GPAB) schemes will also be introduced to allow working fathers and adoptive mothers on short-term employment contracts or whose employment contract had ended just before their child was born or adopted to qualify for paternity or adoption benefits.
Changes to Child Development Co-Savings Act
• Employment Pass applications - for employees in the financial sector: SGD$5,000 for new applications from 1 December 2020 and for renewal applications from 1 May 2021; for employees in other sectors: SGD$4,500 for new applications from 1 September 2020 and for renewal applications from 1 May 2021; and • S Pass applications – SGD$2,500 for new applications from 1 October 2020 and for renewal applications from 1 May 2021.
During the National Day Rally on 29 August 2021, Prime Minister Lee Hsien Loong announced that Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) guidelines will be enshrined in law. The new law will prohibit discrimination based on age, race, religion and disability; women will also get better protection. The dispute resolution process for workplace discrimination cases will be similar to how salary disputes and wrongful dismissals are currently dealt with under the Employment Claims Tribunal.
Fair employment practices
Singapore will raise its statutory retirement age to 63 on 1 July 2022 and gradually to 65 by 2030. The statutory re-employment age will also be increased to 68 on 1 July 2022 and gradually to 70 by 2030. Additionally, from 1 July 2022, the recommended minimum and maximum Employment Assistance Payment (EAP) will be raised to SGD$6,250 and SGD$14,750 respectively. If the employee has been re-employed for 30 months or more since the prevailing statutory retirement age, the employer can offer an EAP of two months' salary subject to a minimum of SGD$4,000 and a maximum of SGD$8,500.
Changes to retirement and re-employment obligations
It is possible for a non-Singapore entity to engage an individual who is performing work in Singapore. Foreign employees who are not Singapore Permanent Residents will require a work pass in order to lawfully work in Singapore. The employment will generally be subject to tax and Central Provident Fund contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
A view from South Korea
Greater Work Hours Flexibility (Flexible Work Hours)
From 6 April 2021 (1 July 2021 for workplaces with 5 - 49 employees), employers can implement a flexible work hours system (where employers can require employees to work for more than 40 hours per week, per agreement with the employee representative, so long as the average work hours per week was 40 hours without any particular week exceeding 48 hours/week) for up to 6 months; provided that, the average work hours per week remains no more than 40 hours without any one week exceeding 52 hours/week or 12 hours/day – in addition to other procedural and substantive requirements (for example, an employer must guarantee at least 11 hours between the end of a work day and the start of the next work day; and notification of the daily work schedule to the employee representative by no later than 2 weeks before the start of the work week).
Under the newly enacted Major Accident Punishment Act (effective on 27 January 2022), an applicable accident is recognized as a “Major Industrial Accident” if it involves: (a) death of at least one person; or (b) injuries to at least two persons or more requiring at least six months of recovery; or (c) at least three persons or more experiencing the same type of work-related illness (to be enumerated in the forthcoming Presidential Decree) attributable to the same cause within one year period. Employers are required to (i) establish safety/health management protocol (e.g., personnel, budget) to prevent accidents and enforce the protocols, (ii) establish accident response plans in cases of an accident and execute the plans to prevent a further accident; (iii) take measures in accordance with orders issued by administrative agencies and municipalities; (iv) take measures required in accordance with the statutory requirements relating to occupational safety and health. The exact scope of the above requirements is expected to be elaborated in the forthcoming Presidential Decree. Depending on the injury (including death), the representative director or relevant officers could be significant criminal sanctions, including imprisonment or major criminal fines. An employer could also be vicariously liable for the actions of its representative director and/or officers under the Major Accident Punishment Act.
Industrial Accident Protection
It is possible for a non-Korean entity to engage an individual who is performing work in Korea. The individual will require the appropriate visa in order to lawfully work in Korea or be a Korean citizen or permanent resident. The Act on Private International Law states that an individual who habitually provides his/her services from within Korea shall not be deprived of the protected afforded under the Korean employment laws. Therefore, generally, the employment must comply with relevant employment and related laws (such as those relating to employment rights, discrimination, health and safety, employee compensation, etc.). However, without a local entity in Korea, the employee must enroll in the national pension and national health insurance as an individual-participant. The employee will be unable to enroll in the remaining two national insurances: employment insurance and the industrial accident compensation insurance because these latter two insurances require a local entity employer for enrollment. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
A view from Sri Lanka
Maximum Compensation to Workman for Unfair Dismissal
Where an employer terminates the scheduled employment of a workman contrary to the provisions of the Termination of Employment of Workmen (Special Provisions) Act, No. 45 of 1971 (TEWA), the Commissioner of Labour will order re-instatement of workman and order payment of wages and all other benefits the workman would have otherwise received had their employment not been terminated. However, where the termination is due to the closure of the employer's business, the Commissioner of Labour may instead order the employer to pay compensation. Pursuant to an order dated 19 February 2021, published in Gazette Extraordinary No. 2216/17 of 25 February 2021, the maximum compensation that may be ordered has now been increased to LKR 2,500,000/-.
There is presently no specific legislation on data protection in Sri Lanka. However, a draft version of the proposed Data Protection Bill prepared by the Legal Draftsman’s Department was released in March 2021 for public consultation. After final approval of the draft, it will be submitted to the Cabinet of Ministers, and presented to the Parliament of Sri Lanka to be enacted into law.
Data privacy
Under the Employees' Provident Fund Act, No. 15 of 1958 (EPFA), monies in the individual accounts of members (ie employees covered under the EPFA) become payable to members after they reached the age of 55 (for males) or 50 (for females). However, members who continue to work in a covered employment after reaching the qualifying age will not be entitled to payment of the monies until they cease to be employed. The term 'covered employment' is widely defined and generally captures all employment. Further, a member of the Fund is not entitled to withdraw any sum standing to their credit in their individual account more than once in a period of five years. There are proposals to raise the minimum age for provident fund withdrawal to 60 years. However, no bill has yet been proposed or presented to Parliament to amend the currently existing provisions.
Minimum wage for Provident Fund Withdrawal
With effect from 16th August 2021, the national minimum monthly wage payable by employers to all employees in any industry is LKR 12,500/- and the national minimum daily wage is LKR 500/-.
Minimum wage
It is possible for a non-Sri Lankan entity to engage an expatriate individual for performing work in Sri Lanka. Foreign employees will require a residence visa from the Department of Immigration and Emigration in order to lawfully work in Sri Lanka. The employer will have to apply to the Department of Immigration and Emigration for the residence visa together with a recommendation letter issued by a Government entity pertaining to the sector in which the employer is operating. The employment will generally be subject to tax and pension/social security contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination, health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
A view from Taiwan
Occupational safety and health
Against the backdrop of the rise in the use of food delivery services, amendments to the Regulations on Occupational Safety and Health Facilities concerning food delivery workers were issued by the Ministry of Labour on 2 March 2020. The amendments impose a number of duties on employers to take measures to ensure the safety of food delivery workers. In particular, employers are required to provide certain safety equipment to workers who deliver food using motorcycles, bicycles and other vehicles. Employers also have a duty to carry out certain work safety assessments, such as evaluating the traffic and weather conditions when assigning food delivery tasks to employees. Notably, Article 325-1 of the Regulations expressly provides that these safety measures apply to both employees and workers who do not have an employer-employee relationship with the person instructing them.
On 29 October 2020, the Ministry of Labour issued an interpretation of the Labour Standards Act, which concerned notice periods where employment is terminated by the employer, as well as the calculation of payments in lieu of such notice periods. Under the interpretation of the Act, the duration of the notice period required depends on the duration of employment of the employee. If an employer decides to make a payment in lieu of notice period, the total amount shall equal the total number of days in the required notice period multiplied by the employee's daily wage. The interpretation also sets out rules on how the daily wage shall be determined if the employee is paid on a monthly basis.
Payment in lieu of notice
In order to promote the employment of middle-aged and senior-aged workers and strengthen Taiwan's economy, the Promotion of Employment of Middle-aged and Senior-aged Employees Act was passed in December 2019 and came into effect on 4 December 2020. The Act prohibits employers from differentially treating middle-aged and senior-aged employees on the ground of age without proper justification. The prohibition covers a wide range of scenarios in which middle-aged and senior-aged workers may be discriminated against, including recruitment, performance appraisal, promotion, training, and remuneration. Under the Act, an aggrieved employee may lodge a complaint with the relevant labour authority, in which case the burden of proof will fall on the employer to either disprove the alleged differential treatment, or show that there are valid justifications for such differential treatment. If an employer is found liable, they may be faced with a fine of up to NTD 1.5 million.
It is possible for a non-Taiwan entity before having a local presence to engage an individual who is performing work in Taiwan. The individual shall be a Taiwanese citizen or non-Taiwan citizen holding an Alien Permanent Resident Certificate or an appropriate residence visa in order to lawfully work in Taiwan. Unless the employment agreement is concluded in another country outside the jurisdiction of Taiwan, the employment will generally be subject to salary tax and must comply with Taiwan’s relevant labour laws and related regulations (such as those relating to employment rights, data protection, discrimination health and safety, employee compensation etc. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, taxes and other corporate and regulatory issues that arise.
A view from Thailand
Although published in May 2019, the implementation of many of the key provisions of Thailand's new Personal Data Protection Act (PDPA) was postponed until May 2021. A second deferment further postpones implementation to June 2022. Employers will need to ensure that they are compliant with the PDPA provisions, which include:
It is possible for a non-Thai entity to engage an individual who is performing work in Thailand. Foreign employees will require a non-immigrant visa in order to lawfully work in Thailand. The employment will generally be subject to tax and pension/social security fund contributions and must comply with relevant labour and related laws (such as those relating to employment rights, data protection, discrimination health and safety, employee compensation etc), however, consideration of the specific circumstances will be necessary to determine this. Depending on the specific arrangements in place (including the type of work the individual performs and where this work occurs), there may be business registration, tax and other corporate and regulatory issues that arise.
• obtaining consent from data subjects in order to collect, use or disclose personal data; • notifying data subjects of the purposes for collection, use or disclosure of their personal data; • providing data subjects with access to their personal data and a right of correction; and • complying with requirements relating to the accuracy, security and retention of personal data.
There are various exemptions which may be helpful for employers, including that controllers are not required to obtain data subjects' consent for the collection of personal data if such collection is necessary for the legitimate interests of data controllers (except where such interests are overridden by the fundamental rights in personal data of data subjects).
A view from VIETNAM
E-contracts
The 2019 Labour Code also expressly permits the use of e-contracts that comply with the relevant electronic transaction laws. Such e-contracts will have the same effect as a physical contract. Given the pandemic, the use of e-contracts is already prevalent in practice but this amendment is useful to confirm the validity of such contracts.
In 2021, the retirement ages will be 60 years and 3 months for men, and 55 years and 4 months for women. This will increase by 3 months for men and 4 months for women for each consecutive year. By 2028, the planned retirement age for men will be 62 years for men and by 2035, 60 years for women. There are exceptions to this. The retirement ages for skilled employees may be higher by up to 5 years, and the retirement ages for those performing hazardous work may be lower by up to 5 years, compared to the applicable retirement ages for other employees.
Retirement
The Labour Code 2019 also introduced an additional public holiday. Previously, 2 September is the National Independence Day. From 1 January 2021, either the 1st or 3rd September is also a public holiday. It is unclear how the public holidays will be decided every year, but it is likely that employers will have the discretion to decide whether either the 1st or the 3rd of September will be a public holiday in a given year.
Public holidays
It is possible for a non-Vietnam entity to engage a Vietnamese national individual who is performing work in Vietnam. Where such arrangement satisfies the Labour Contract criteria, it would be considered as a labour contract, and required that the employee’s benefits are not lower than the minimum benefits of employees in accordance with the labour law of Vietnam. In other words, this employment generally must comply with relevant labour and related laws (such as personal income tax), however, consideration of the specific circumstances will be necessary to determine this. It is impossible for a non-Vietnam entity without a presence in Vietnam to validly engage a non-Vietnamese national individual for performing work in Vietnam.
CONTRIBUTORS
Herbert Smith Freehills
External contributors
+44 20 7466 2427
Executive Partner, West Managing Partner, Employment, Pensions and Incentives
Alison Brown
+61 3 9288 1236
Regional Head of Practice (EIRS) Australia, Employment, Pensions and Incentives
STEVE BELL
FATIM JUMABHOY, Rebecca Lim and Nurul Ayu Fajarani
ASIA/SINGAPORE
Anna Creegan, Drew Pearson AND Shivchand Jhinku
AUSTRALIA
Gareth Thomas AND Tess Lumsdaine
Hong Kong
Cathy Liu (Kewei) AND Gillian Miao (Kewei)
PRC
David Gilmore AND Yosuke Homma
Narendra Adiyasa (HBT) AND David Siagan (HBT)
INDONESIA
Peter Godwin AND Fatim Jumabhoy
Malaysia
Chinnawat Thongpakdee AND Chotika Voravongsakul
Thailand
Dana Kim AND Fatim Jumabhoy
South Korea
Andrew Taggart AND Paul Ellerman
UNITED KINGDOM
Doulah Doulah: Nasir Doulah - ndoulah@doulah.com
Bangladesh
Yusof Halim & Partners: Eugene Loh - eugeneloh@yhplaw.com
Brunei Darussalam
Sok Xing & Hwang: Hans S. Hwang - hans.hwang@sxhlaw.com Sok Lor - lor.sok@sxhlaw.com
Kochhar & Company: Gagan Verma - gagan.verma@kochhar.com
Mori Hamada & Matsumoto Taichi Arai - taichi.arai@mhm-global.com Kenta Minamitani - kenta.minamitani@mhm-global.com
DFDL Kristy Newby - kristy.newby@dfdl.com Standre Bezuidenhout - standre.bezuidenhout@dfdl.com
JNV Legal Pedro Branco - pedro.branco@jnvlegal.com Pedro Meireles - pedromeireles@jnvlegal.com
MACAU
Skrine Selvamalar Alagaratnam - sa@skrine.com Foo Siew Li - foo.siewli@skrine.com
Mahoney Liotta LLP Daniel Mahoney - daniel.mahoney@mlmongolia.com Narantuya Gundegmaa narantuya.gundegmaa@mlmongolia.com
DFDL: William Greenlee - william.greenlee@dfdl.com
Bell Gully: Rachael Brown - rachael.brown@bellgully.com
Sycip Salazar Hernandez & Gatmaitan: Marianne M Miguel - mmmiguel@sycip.com
Philippines
Lee & Ko Sanghoon Lee - sanghoon.lee@leeko.com William (Woojong) Kim - william.kim@leeko.com
Varners: Krishanth Rajasooriyar - rajasooriyar@varners.lk
Lee & Li Ken-Ying Tseng - kenying@leeandli.com Joyce J.M. Chen - joycechen@leeandli.com
Frasers Law Company Mark Fraser - mark.fraser@fraservn.com Phung Thi Thanh Thao - thao.phung@fraservn.com