Article 55 of Supreme Decree No. 21060 of August 29, 1985, established that both private and public entities could freely enter into or terminate labor agreements subject to the General Labor Law and its Regulatory Decree. Also, under article 39 of Supreme Decree No. 22407 of January 11, 1990, the voluntary hiring and termination of employees was established ...
On 6 April 2006, new regulations, called the Transfer of Undertakings (Protection of Employment) – TUPE - Regulations 2006 came into force to replace the well-known 1981 Regulations. These are the Regulations that make provision for protection of employees – from dismissal and in their terms and conditions - where a business is transferred from one company to another. TUPE 2006 differs in a number of ways from the 1981 Regulations ...
In recent times, the issue of post-retirement healthcare benefits has taken on new significance for employers and sponsors of pension and health and welfare plans. Factors such as increasing numbers of retirees, rising drug and healthcare costs and government cutbacks to universal healthcare programs are causing organizations to re-evaluate the extent to which they can or are willing to continue to provide post-retirement healthcare benefits ...
In a judgment rendered on February 7, 2006, the Quebec Court of Appeal reiterated the obligations of the employer and the employee to play a role in seeking a reasonable accommodation. In cases where a collective agreement exists, the union has the same obligation ...
The phenomenon of personnel agencies Generally, Labour Relations laws assume the interaction of two parties, an employer and an employee. The employee offers his services, for pay, to an employer, who determines the working conditions and ensures discipline. This is a bipartite relationship. However, when a business entrusts the management of its human resources to a personnel agency, there is a tripartite relationship ...
From 1 October 2006, new legislation comes into effect intended to combat age discrimination. During a recent series of seminars, commercial law firm Shepherd and Wedderburn carried out a survey of delegates to understand employers' concerns and see what efforts they are making to take the new law on board. More than one in four delegates claimed they themselves intended to work past the anticipated default retirement age of 65 while a further 15% were unsure ...
This paper appears in the March 24, 2006 issue of The Lawyers Weekly, published by LexisNexis Canada Inc. Over the past few years, courts in Canada have faced the apparent conflict between competing statutory mandates with respect to class proceedings and arbitrations. In Ruddell v. BC Rail Ltd., 2005 BCSC 1504, Mr. Justice Holmes of the British Columbia Supreme Court reviewed this conflict in the context of pension litigation ...
The Court of Final Appeal made a landmark ruling at the end of February on an unprecedented claim for holiday pay or annual leave pay based on commission in Lisbeth Enterprises Limited v Mandy Luk. The Court concluded that, apart from the contractual commission which accrued and calculated on a daily basis in amount varying from day to day, no commission is to be included in the calculation of holiday pay and annual leave pay ...
Doctors working in public hospitals claimed that, in breach of their employment contracts as well as the Employment Ordinance, for many years the Hospital Authority had required them to work long hours without proper compensation. The doctors in this latest round of confrontation with the HA successfully claimed compensation for "rest days" and "holidays" for which they had been deprived but lost their claim on compensation for "overtime" worked ...
Introduction Since June 1, 2004, the Labour Standards Act (hereinafter the “L.S.A.”) requires employers to provide a work environment free from psychological harassment. Thus, employers must, as a first step, take reasonable measures to prevent psychological harassment and then, whenever they become aware of such behaviour, put a stop to it. These duties imposed on employers are obligations “of means” as opposed to obligations “of result” ...
In April 2005 a new Disability Discrimination Act was passed by Westminster. The Act extends existing non-discrimination legislation, primarily the Disability Discrimination Act 1995. While some provisions of the Act came into force in December 2005, many others will be coming into force over the course of 2006. It is essential that businesses are aware of their new responsibilities under the Act and prepare for its implementation ...
The courts have always considered Quebec’s class action legislation to be strictly procedural and not modifying substantive law. Normally a person can only sue if he has a legal relationship with the defendant, meaning that he has a personal right of action. Thus, in the case of Bouchard v. Agropur coopérative et al,1 Mr. Justice J. Viens refused to authorize Bouchard to institute a class action against dairies from which he had not purchased milk. However, Mr. Justice M ...
A 100% Quebec Parental Insurance Plan A new Quebec Parental Insurance Plan (QPIP) came into force on January 1, 2006. This plan provides for payment of benefits to all workers eligible for the plan who take a maternity leave, parental leave, paternity leave or adoption leave. This plan replaces the federal employment insurance plan. Beginning in 1996, Quebec informed Ottawa that it wanted to implement its own parental insurance plan ...
On 6 April 2006, new regulations, called the Transfer of Undertakings Protection of Employment - TUPE - Regulations 2006 came into force to replace the well-known 1981 Regulations. These are the Regulations that make provision for protection of employees ? from dismissal and in their terms and conditions - where a business is transferred from one company to another. TUPE 2006 differs in a number of ways from the 1981 Regulations ...
In Hong Kong, some employers grant to employees more than one day off per week while the Employment Ordinance (“EO”) only requires the employer to grant one rest day in every period of seven days. Under such circumstances, there is a question as to whether the employees are entitled to an alternative holiday when the statutory holiday falls on a day off ...
In Hong Kong, it is quite common for employers to grant commission or allowance in addition to basic salary to the employees as part of the remuneration package. Under the EO, eligible employees are entitled to holiday and annual leave pay in respect of holiday or annual leave taken by the employees. There is a question as to whether commission is to be included in “wages” for the purpose of calculating the holiday and annual leave pay to the employees ...
On 23 December 2005, the District Court delivered its judgment on a sex and family status discrimination claim in the case of Lam Wing Lai v YT Cheng (Chingtai) Ltd DCEO 6/2004. The Defendant was a Hong Kong company carrying on the business of trading in industrial raw materials and the Plaintiff was employed as the secretary to the director between 21 May 2001 and 11 November 2002 ...
The Ministry of Labour and Social Security (“MLSS”) issued the Letter on Issues Relevant to the Occupational Qualification Certificates Held by Foreigners Seeking Employment in China on 13 September 2005. The Letter is likely to make it more difficult for foreigners to take up employment in China in positions or jobs for which Occupational Qualification Certificates must be held ...
The Ministry of Labour and Social Security (“MLSS”) issued the Letter on Issues Relevant to the Occupational Qualification Certificates Held by Foreigners Seeking Employment in China on 13 September 2005. The Letter is likely to make it more difficult for foreigners to take up employment in China in positions or jobs for which Occupational Qualification Certificates must be held ...
From 1 October 2006, new legislation comes into effect intended to combat age discrimination. During a recent series of seminars, commercial law firm Shepherd and Wedderburn carried out a survey of delegates to understand employers' concerns and see what efforts they are making to take the new law on board. More than one in four delegates claimed they themselves intended to work past the anticipated default retirement age of 65 while a further 15% were unsure ...
On December 31, 2005, amendments to Ontario’s Securities Act will come into effect to provide investors with a new recourse against companies and their directors, officers, employees and consultants for any misrepresentation in their public documents or public oral statements, or for failure to make timely disclosure of material changes in the company’s circumstances ...
Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), employers who provide group health plans and have 20 or more employees must offer continuation coverage to “qualified beneficiaries” who have lost health coverage as a result of certain qualifying events. This article addresses a number of common COBRA-related issues ...
Employment Law Update In This Issue... Change to Win Coalition Focuses on Certain Industries to Revitalize Labor Movement ...... 1 Boss’s Workplace Fling May Be Everybody’s Business ............. 2 Employers Must Recognize the “Duty to Act” ........................... 4 Work Eligibility and Citizenship — It May Be Time To Dust Off Those I-9s ................................... ...
On October 13, 2005, the Court of Appeal rendered judgment in two cases involving The Maritime Life Assurance Company and its insured, Madeleine Houle. In the first case, the Court of Appeal stated that the insurer is entitled to obtain a counter expertise by summoning its insured by writ of subpoena (art. 399 C.C.P.) even if it had its insured examined previously. In the second case, the Court ruled on the right of an insurer to have the insured examined by the expert of its choice (art ...
The recent decision of the Court of Quebec, Small Claims Division, in the case of Spénard v. Promutuel Bois-Francs, société mutuelle d’assurance générale,1 revisited the issue of the right of an insurer to seek the nullity of an insurance policy based on an insured’s failure to disclose a prior conviction under the Young Offenders Act. The Plaintiff claimed $5,100 from his insurer for property stolen from his home between January 24 and January 27, 2003 ...
