ASIA PACIFIC EMPLOYMENT LAW GUIDE 2015 LEGAL GUIDE

Transcription

1 ASIA PACIFIC EMPLOYMENT LAW GUIDE 2015 LEGAL GUIDE April 2015

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3 HERBERT SMITH FREEHILLS ASIA PACIFIC EMPLOYMENT LAW GUIDE INTRODUCTION I am delighted to introduce to you the 2015 edition of Herbert Smith Freehills' Asia Pacific Employment Law Guide. This latest edition of the Guide contains a high level summary of the key employment laws and principles in 21 jurisdictions across the Asia Pacific region. The Guide is produced and updated annually and has, over the years, become the 'go to' resource for HR managers and in-house counsel with employment-related responsibilities in the region. The Asia Pacific region continues to be a dynamic arena for employment law issues. Language and cultural differences overlay employment laws which are at different stages of evolution and have different goals in mind. A useful approach is to consider the 'employer friendliness' of a particular jurisdiction, with countries like Hong Kong and Singapore at one end of the spectrum. These jurisdictions allow employers to react to market changes relatively easily, and allow for unilateral termination of employment, reflecting the emphasis on providing support for successful commercial endeavours. On the other end of the spectrum are the 'employee friendly' jurisdictions, which provide detailed employee protection and often require consultation and consent prior to any workplace changes. Jurisdictions in this category include Indonesia, Vietnam, Japan, Korea, Thailand and China. Somewhere in the middle are jurisdictions like Australia, New Zealand and India which, whilst highly regulated, still allow employers a degree of flexibility in relation to organisational change and restructure. Navigating the various employment landscapes across the Asia Pacific region remains a complicated task for HR managers and in-house counsel, and we hope this Guide will make that journey a little easier. In addition to the varying labour laws, the past twelve months have seen a number of changes in the employment law landscape across the Asia Pacific region. Workplace health and safety has remained a hot topic: in China, amendments to the Work Safety Law have seen harsher penalties given to companies and their executives to prevent work place accidents, while in Japan a seminal decision on power harassment resulted in a high value pay out to the family of a deceased employee. Collective bargaining rules have been revisited in both New Zealand and Singapore: the new Employment Relations Amendment Act 2014 provides new benefits to employers in respect of collective bargaining and strike action in New Zealand, while over in Singapore amendments to the Industrial Relations Act will allow managerial and executive level employees to be represented in the collective bargaining process for the first time. Does the duty of trust and confidence still exist in employment contracts? This question was considered by both the Australian and Singapore courts, with very different results. In Australia, the High Court ruled in the negative, while in Singapore, following Hong Kong's lead, the opposite conclusion was reached, illustrating just how different even seemingly similar common law jurisdictions can be. Hong Kong has also been a busy jurisdiction, with new paternity leave rules taking effect in 2015, and a number of new changes contemplated to the Employees' Compensation Ordinance to reflect wage and price increases. Since the 2014 edition of the Guide the primary legislation governing employment in Laos was replaced when the Law on the Amendment of Labour Law of Lao People's Democratic Republic (No 043/NA, December 24, 2013) came into effect. The new law omits many of the more onerous requirements that previously applied to disciplinary matters and termination of employment and makes a number of changes to the workplace health and safety regime and the laws regulating union relations. Herbert Smith Freehills' on-the-ground Employment, Pensions and Incentives team is ideally placed to assist you to navigate this complex and constantly evolving regional employment law landscape. We have employment law specialists in each of our offices in Hong Kong, Singapore, Japan, the Peoples' Republic of China, Korea, Thailand, Indonesia and Australia. We believe the geographical location, size, experience and expertise of our employment law team makes our firm unique in the Asia Pacific region. Our team members also have excellent relationships with local employment law firms in jurisdictions where we do not have a physical presence. These firms have assisted us in the preparation of this Guide and we express our thanks to them for their contributions. As always, please note that the information contained in this Guide is not legal advice. While the content of it is current to 1 February 2015 (except where otherwise stated), laws are of course subject to change. We therefore recommend that you obtain formal legal advice before relying on the information contained in this Guide. The contact details of our on-the-ground Asia Pacific Employment, Pensions and Incentives team members can be found at the back of this Guide. I encourage you to contact them (or your usual Herbert Smith Freehills contacts) with any questions you may have. I trust that you will find this Guide a useful first resource for answers to your questions about employment law in the Asia Pacific region. We look forward to assisting you with any employment issues which arise in these jurisdictions and to working with you to drive your business forward in the region. April 2015 Alison Brown Global Head of Employment, Pensions and Incentives T alison.brown@hsf.com

4 02 ASIA PACIFIC EMPLOYMENT LAW GUIDE 2015 HERBERT SMITH FREEHILLS CONTENTS INTRODUCTION AUSTRALIA Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations BANGLADESH Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations CAMBODIA Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations HONG KONG Minimum statutory terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations INDIA Minimum terms Disciplinary procedures asic Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations INDONESIA Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing

5 HERBERT SMITH FREEHILLS ASIA PACIFIC EMPLOYMENT LAW GUIDE Occupational health and safety Data protection and contracting Industrial relations JAPAN Minimum statutory terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations KOREA Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations LAOS Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations MACAU Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations MALAYSIA Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations MONGOLIA Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations

6 04 ASIA PACIFIC EMPLOYMENT LAW GUIDE 2015 HERBERT SMITH FREEHILLS MYANMAR Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations NEW ZEALAND Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations THE PHILIPPINES Minimum statutory terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations PEOPLE S REPUBLIC OF CHINA Minimum statutory terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations SINGAPORE Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations SRI LANKA Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations

7 HERBERT SMITH FREEHILLS ASIA PACIFIC EMPLOYMENT LAW GUIDE TAIWAN Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations THAILAND Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations VIETNAM Minimum terms Disciplinary procedures Termination of employment Discrimination and harassment Whistle-blowing Occupational health and safety Data protection and contracting Industrial relations EXTERNAL CONTRIBUTORS HERBERT SMITH FREEHILLS CONTACTS

8 EXTERNAL CONTRIBUTORS 154 ASIA PACIFIC EMPLOYMENT LAW GUIDE 2015 EXTERNAL CONTRIBUTORS HERBERT SMITH FREEHILLS COUNTRY BANGLADESH CAMBODIA INDIA KOREA LAOS MACAU MALAYSIA MONGOLIA MYANMAR NEW ZEALAND PHILIPPINES SINGAPORE SRI LANKA TAIWAN VIETNAM CONTACT Syed Ishtiaq Ahmed & Associates Afzal Syed KCP Cambodia Jay Cohen Kochhar & Ko Manishi Pathak Lee & Ko Paul Cho DFDL Rupert Haw JNV Legal Pedro Branco Joanna Rodrigues Skrine Siva Kumar Kanagasabai MahoneyLiotta LLP Daniel Mahoney Herbert Smith Freehills with assistance from Myanmar Legal Services Paul Cruise Bell Gully Grace Stacy-Jacobs Tim Clarke SyCip Salazar Hernandez & Gatmaitan Marianne M. Miguel Prolegis LLC Ban Leong Oo Varners Lakshika Siriwardana Nimal Weeraratne Lee and Li Joyce Chen Ken-Ying Tseng Frasers Law Company Phung Thi Than Thao

9 HERBERT SMITH FREEHILLS ASIA PACIFIC EMPLOYMENT LAW GUIDE HERBERT SMITH FREEHILLS CONTACTS CONTACT GLOBAL HEAD OF EMPLOYMENT, PENSIONS AND INCENTIVES AUSTRALIA Alison Brown T M alison.brown@hsf.com Steve Smith, Brisbane T M steve.smith@hsf.com Miles Bastick Regional Practice Group Head (EPI) Australia, Sydney T M miles.bastick@hsf.com Michael Gonski, Sydney T M michael.gonski@hsf.com CONTACT Bronwyn Sullivan Senior Associate, Sydney T M bronwyn.sullivan@hsf.com Jess Toop Senior Associate, Melbourne T M jess.toop@hsf.com Clarissa Robbins Senior Associate, Brisbane T M clarissa.robbins@hsf.com Rachael Wong Solicitor, Melbourne T D rachael.wong@hsf.com HERBERT SMITH FREEHILLS CONTACTS Celia Yuen Executive Counsel, Melbourne T M celia.yuen@hsf.com Helen Beech Senior Associate, Perth T D helen.beech@hsf.com

10 HERBERT SMITH FREEHILLS CONTACTS 156 ASIA PACIFIC EMPLOYMENT LAW GUIDE 2015 HONG KONG CONTACT Gareth Thomas T M gareth.thomas@hsf.com Susan Leung Consultant T M susan.leung@hsf.com Gillian McKenzie Associate T M gillian.mckenzie@hsf.com JAPAN CONTACT Peter Godwin Managing T M peter.godwin@hsf.com Georgina Stevens Senior Associate T D georgina.stevens@hsf.com Florence Cheung Senior Associate, Gaikokuho Jimu Bengoshi T D florence.cheung@hsf.com HERBERT SMITH FREEHILLS David Smail Associate T D david.smail@hsf.com KOREA Lewis McDonald Managing T M lewis.mcdonald@hsf.com INDONESIA David Dawborn T M david.dawborn@hbtlaw.com James Doe T M james.doe@hsf.com Santi Darmawan Managing, Hiswara Bunjamin & Tandjung T M santi.darmawan@hbtlaw.com Narendra Adiyasa Senior Associate, Hiswara Bunjamin & Tandjung T M narendra.adiyasa@hbtlaw.com

11 HERBERT SMITH FREEHILLS ASIA PACIFIC EMPLOYMENT LAW GUIDE PRC CONTACT Karen Ip, Beijing T M karen.ip@hsf.com Nanda Lau, Shanghai T M nanda.lau@hsf.com Doreen Yan Associate, Beijing T M doreen.yan@hsf.com THAILAND CONTACT Chinnawat Thongpakdee T M chinnawat.thongpakdee@hsf.com Janaki Tampi Associate (Admitted in Australia) T D janaki.tampi@hsf.com Chotika Voravongsakul Junior Associate T D chotika.voravongsakul@hsf.com HERBERT SMITH FREEHILLS CONTACTS Jasmine Chen Associate, Shanghai T M jasmine.chen@hsf.com UK Andrew Taggart T M andrew.taggart@hsf.com SINGAPORE Fatim Jumabhoy Of Counsel T M fatim.jumabhoy@hsf.com Daniel Schaffer T M daniel.schaffer@hsf.com Sarah Yazid Associate T M sarah.yazid@hsf.com Paul Ellerman T M paul.ellerman@hsf.com Tara Grossman Senior Associate T D tara.grossman@hsf.com

12 The contents of this publication, current at the date of publication set out in this document, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication. and its affiliated and subsidiary businesses and firms and Herbert Smith Freehills, an Australian ship, are separate member firms of the international legal practice known as Herbert Smith Freehills. Herbert Smith Freehills 2015

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