This month IPBA members in several jurisdictions have seen a lot happening in employment, international trade, telecommunications and media!
Employment & Immigration
– Frédérique David (France) – Chair
From Indrani Lahiri - India
New legislation providing rights for persons with disabilities
New legislation providing for rights for persons with disabilities has replaced the earlier law on the subject. The new law is a much more robust statute than the one it replaces with its focus on protecting the rights of people with disabilities. Every establishment (whether Government or private) has been mandated to publish equal opportunity policy for persons with disabilities which should be displayed on their website or at conspicuous places in the premises.
The Maternity Benefits (Amendment) Act, 2017 dated March 28, 2017 (a) has increased the duration of paid maternity leave available for women employees from 12 weeks to 26 weeks, provided that for a woman employee having two or more children the leave shall remain 12 weeks; (b) provides that a woman employee who adopts a child below the age of three months or a commissioning mother shall be entitled to 12 weeks of maternity leave, from the date the child is handed over to the mother; (c) introduces an enabling provision relating to "work from home" for women, depending upon their nature of work; and (d) makes it mandatory for an employer employing 50 or more employees to provide crèche facility.
The Rights of Persons with Disabilities Act, 2016 has come into force from April 19, 2017 and the rules have been issued on June 15, 2017.
From Frédérique David - France
Stay tuned! French government is planning to implement major changes in French labour laws, starting this Summer! Will they manage to do so? How far will they be able to go? How long will that take? Time will give us the answers to those excruciating questions.
From John Stamper – Bein (Qatar)
The impact of the recent action taken by Saudi Arabia, UAE, Egypt and Bahrain against Qatar has caused significant employment and immigration problems within the GCC. A number of Qatar-based employers who have operations in the four states mentioned above, have been forced to terminate employment of staff engaged in those countries.
Local law provisions in (for example) the UAE are such that an employee may only lawfully work for a licensed entity. Therefore, if operating licenses have been suspended, there are potentially catastrophic personal consequences for employees and their resident families. Inevitably, there has been an increase in force majeure arguments (sometimes rather disingenuous) in relation to general commercial contract performance.
From Jenny Tsin – Singapore
A new forum has been set up in Singapore to hear employment disputes.
The Employment Claims Act came into force on 1 April 2017. Through it, the Employment Claims Tribunals (ECT) has been set up. The ECT fills a need as it provides an inexpensive and expeditious forum for resolving salary-related claims. The ECT has jurisdiction to hear claims up to S$20,000 or up to S$30,000 (if the dispute has undergone mediation assisted by the unions).
Before the ECT will hear a case, the employee/ex-employee must undergo mediation at the Tripartite Alliance for Dispute Management (TADM). Where mediation is successful, the parties will enter into a settlement agreement, which can be registered in the District Court within 4 weeks from the date the settlement agreement is signed. A registered settlement agreement would be enforceable as an order of the Court.
If mediation is unsuccessful, parties present their case at the ECT. All orders of the ECT can be enforced as an order of the Court.
Lawyers are not allowed to represent the parties at the mediation session or at the ECT.
Increase in Re-Employment Age
From 1 July 2017, employers have to offer re-employment to eligible workers up to the age of 67, an increase from 65 years of age. The former provision allowing companies to cut the wages of employees who turn 60 by up to 10% has also been removed.
In situations where re-employment is not possible, the employer must either provide an Employment Assistance Payment (EAP) or arrange for its re-employment obligations to be transferred to a different employer with the employee’s consent and on similar terms. The revised edition of the Tripartite Guidelines on Re-employment of Older Employees which took effect in July 2017 had increased the EAP amount, take into consideration rising wages and the extension of employers’ re-employment obligations by two years.
From Trent Sutton – United States
Federal Agencies Scale Back Their Workplace Regulatory Ambitions
During the prior administration, congressional gridlock prevented many significant labor and employment bills from advancing. Federal agencies picked up the slack, issuing several rules to help carry out much of President Obama's workplace agenda. The latest Unified Agenda of Regulatory and Deregulatory Actions, which lists agency regulatory priorities for the foreseeable future, paints a very different picture for employers. The list of current rulemaking for the Department of Labor, for example, has been pared down from the prior year's list, and its omissions are perhaps more telling than its contents.
House Hearing Explores Legislative Remedy to Joint Employer Confusion
On July 12, 2017, the U.S. House Committee on Education and the Workforce held a hearing concerning the need for legislation to redefine the joint employer standard. As many employers are aware, the interpretation of when employers constitute “joint employers” has been expanded in the last few years, by the U.S. Department of Labor, the National Labor Relations Board, other regulatory bodies, and the courts. In the hearing, led by Chairwoman Virginia Foxx (R-NC), several witnesses highlighted the difficulties posed by the evolving joint employer standard, particularly for small businesses. Witnesses and representatives considered whether legislation could alleviate, or might aggravate, the confusion felt by many employers. The partisan divide is readily apparent in this ongoing debate. Republicans on the Committee seemed ready to answer the witnesses’ calls for clarity through legislation, while Democrats appeared more concerned with maintaining pressure on employers to ensure accountability and safeguard worker protections. Littler will continue to monitor developments on this issue.
Overhaul of H-1B Visa Program Expected in Response to "Buy American and Hire American" Order
The White House has been working with the Department of Justice to formulate changes to the H-1B visa program pursuant to the administration’s “Buy American and Hire American” executive order. The H-1B visa program is a temporary work visa for professional positions. Apart from the required involvement of the Department of Homeland Security, some of the proposed changes to the program could be implemented by administrative actions, while others would require new legislation to be passed.
International Trade – Jesse Goldman (Canada), Corey Norton (United States) – Co-Chairs
From Paolo Vergano – Belgium
While other major economies and international organizations struggle to re-negotiate or finalize modern trade agreements (e.g., the Transpacific Partnership Agreement, the North American Free Trade Agreement, WTO reform negotiations), the EU continues to push forward with new deals. In July, the EU and Japan reached an agreement in principle on their respective FTA, and the EU and Canada set the provisional application of the Comprehensive Economic and Trade Agreement (CETA) to 21 September 2017. Elsewhere, the EU is also pursuing agreements with, inter alia, multiple Southeast Asian countries, Australia and New Zealand, and Latin America, setting itself up to remain dominant in the world market.
From Jeffrey Snyder – United States
A view from Washington - The "disTrumption" that we discussed in Auckland continues to roil global business: supply chains, sourcing, trade agreements, market access, all face ongoing challenges. The dismantling of the old order continues as Trump’s trade team has more members in place and is pursuing the so-called “America First” strategy:
The ongoing (and protracted) Section 232 national security investigations of imports of steel and aluminum have become bogged down in concerns from opponents inside and outside the United States that drastic measures could hurt the US and the global economy more than any benefit they yield. The EU is in “elevated battle mode” and ready to retaliate.
The NAFTA talks are underway and the Administration has released its priorities; despite the absence of detail, many observers point to the obvious similarities to US negotiating objectives in the now independent TPP. The United States sits on the sidelines as the TPP11 talks begin to forge a different agreement in Asia.
Trump has triggered the renegotiation of KORUS.
Even the Border Adjustment Tax, or BAT, is back in the news. As collapse of the health care bill in Congress creates another failure for Trump, other means of raising revenue place the BAT proposal back in the mix.
Congress is not only blocking Trump’s health care objective, it has now adopted new sanctions on Russia (and Iran and North Korea) that will, unless he vetoes it, tie his hands and require new measures on Russia.
A re-write of the CFIUS provisions on foreign investment in the United States is underway in Congress, designed to provide greater authority to review investments beyond national security and critical infrastructure, and to review transactions, such as joint ventures, outside the United States, that provide access to US technology.
A UK-US “trade and investment working group” is meeting to begin to map out what post-Brexit trade might look like. The clock is ticking on the Brexit negotiations themselves, and companies invested in either country are assessing their strategies in the light of both Brexit and disTrumption.
Finally, for this short summary, a variety of new laws on duty evasion, imports made with forced labor, Buy American, among others, are creating significant new risk issues for those trading with the United States.
Few know what’s next, but we all expect the pace and intensity of the “America First” crusade to continue for some time.
Technology, Media & Telecommunications – Barunesh Chandra (India) – Chair
From Monika Singh – India
On July 18th, 2017 the Telecom Regulatory Authority of India (TRAI) issued recommendations on Captive Very Small Aperture Terminal (VSAT) Closed User Group (CUG) Policy issues. VSAT technology is used to provide Tele-medicine, Tele-education, internet access, public safety, disaster early warning systems etc. in the most remote areas and has unique advantage over other existing technologies due to rapid deployment with minimum training, scalability, lower operational costs and reliability of communications, even in adverse situations.
As envisaged under the New Telecom Policy, 1999 there are two types of licenses issued under VSAT, commercial CUG VSAT license and captive CUG VSAT license. Commercial VSAT licensees can offer the services by setting up number of CUGs whereas the captive VSAT licensees can set up one CUG and setting up any extra hub is additionally chargeable. Due to such uneven charging mechanism, captive VSAT licensees are hesitant to install a second hub even though captive VSAT is network which is used by various Government organizations for significant issues including public safety, disaster early warning systems, disaster management, relief operations etc. Considering the importance of the captive VSAT technology, TRAI vide its recommendations has suggested the removal of separate license fee for establishing any extra hub for captive VSAT licensees.
From Elsie Stone – New Zealand
Commerce Commission’s roadblock to be challenged
The New Zealand Commerce Commission (Commission) has recently blocked a proposed merger between NZME and Fairfax that would have brought NZ’s two biggest newspaper networks and online news sites under common ownership. The companies had cited a need to keep up with a challenging and rapidly changing commercial environment, however the Commission blocked the merger on the basis that the merger would cause a loss of plurality (i.e. diversity of voices and views in NZ news reporting). Commission Chair, Dr Mark Berry, stated that the merged entity’s concentration of influence over the news agenda “creates a risk of causing harm to New Zealand’s democracy and to the New Zealand public.” NZME and Fairfax have since filed an appeal in the High Court on the grounds that the Commission was (among other things) wrong to have taken plurality considerations into account in its decision-making. A 10-day hearing has been scheduled for October.
From Lim Chong Kin – Singapore
On 10 July 2017, the Ministry of Communications and Information and the Cybersecurity Agency of Singapore (CSA) issued a draft Cybersecurity Bill for public consultation. The consultation will close on 3 August 2017.
The draft bill is intended to establish an omnibus cybersecurity law in Singapore. Key objectives of the proposed law include: (a) establishing a framework for the regulation of critical information infrastructure (CII); (b) providing the CSA with statutory powers to manage, respond to and investigate cybersecurity incidents; (c) establishing a framework for the sharing of cybersecurity information; and (d) establishing a licensing framework for cybersecurity service providers.
The draft bill provides for the appointment of a Commissioner of Cybersecurity who will exercise the powers of the bill. The appointment is intended to be held by the Chief Executive of CSA. Other assistant and deputy commissioners may also be appointed to support him in exercising his powers under the bill.
The draft bill will also impose a set of duties on owners of CII. CII refers to a computer or computer system that is necessary for the continuous delivery of essential services which Singapore relies on, the loss or compromise of which will lead to a debilitating impact on national security, defence, foreign relations, economy, public health, public safety or public order of Singapore. Amongst other things, CII owners will be required to provide information as to the design and operation of the CII, notify the Commissioner of cybersecurity incidents, conduct regular compliance audits and risk assessments, and participate in cybersecurity exercises.
The proposed licensing requirements will cover penetration testing services and managed security operations centre (SOC) monitoring services to start with. Licensed service providers will be subject to certain basic requirements, including a requirement for officers to be fit and proper persons.