Redundancies in Asia and the Pacific: What Employers Need ......• Redundancy = dismissal where...
Transcript of Redundancies in Asia and the Pacific: What Employers Need ......• Redundancy = dismissal where...
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Redundancies in Asia and the Pacific:
What Employers Need to Know
South Asia/the Pacific Session
November 26, 2013
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Presenters
Moderator
Matthew F. Jones, Senior Foreign Attorney,
Kim & Chang, Seoul, South Korea
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Speakers
Leslie C. Dy, Partner, SyCip Salazar,
Hernandez & Gatmaitan, Manila, Philippines
Richard Emmerson, Senior Advisor,
Soewito Suhardiman Eddymurthy Kardono
(SSEK), Jakarta, Indonesia
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Speakers
Phillipa Muir, Partner,
Simpson Grierson, Auckland, New Zealand
Ajay Raghavan, Partner,
Trilegal, Bangalore, India
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Speakers
John Tuck, Partner, Corrs Chambers
Westgarth, Melbourne, Australia
Vijayan Venugopal, Partner, Shearn
Delamore & Co., Kuala Lumpur, Malaysia
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Speakers
Khelvin Xu, Associate,
Rajah & Tann, Singapore
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The circumstances under
which employers can make
redundancies
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Circumstances – New Zealand
• When making redundancies in New
Zealand an employer must:
– Have genuine reasons for deciding
that the person is redundant
E.g., changes in work processes; loss of
business; efficiency gains; a decision to
contract out or sell the business
− Act in a procedurally fair manner,
e.g., consultation, redeployment
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Circumstances – New Zealand
• Cont’d
– Comply with employment
agreements and/or company policy
• Employers are expected to:
– Be proactive about redeployment
opportunities/offer an alternative role
– Show that the decision was genuine,
fair, and reasonable
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Circumstances - Australia
• Redundancy = dismissal where
“employer no longer wishes the
employee’s job to be done by
anyone” (i.e., removal of position)
• Can be implemented as long as
employer complies with statutory,
award, agreement, and/or contractual
obligations
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Circumstances - Australia
• Must be necessitated by changes in
operational requirements, e.g.:
− Introduction of new technology
− Restructure of work or positions
− Change in financial conditions
requires reduction in workforce
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Circumstances - Australia
Key legal obligations of employers
• Unfair dismissal claims
– Excluded where dismissal(s) =
“genuine redundancy”
• Consultation requirements
– Modern awards
– Enterprise agreements
– Fair Work Act, Part 6-4, Division 3
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Circumstances - Australia
• Duty to consider redeployment
– Necessary to explore options for
redeployment to a suitable alternative
role – within enterprise, or any
“associated entity”
– Employee could refuse, e.g. if lower
pay, conditions, status, duties or
unreasonable relocation
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Circumstances - Australia
• Fair and objective selection criteria
– Must not be discriminatory
– Must not relate to employee’s
“workplace rights”; or poor
performance/misconduct
– Must comply with relevant award/
agreement provisions
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Circumstances – India
• In India, termination of employment
must be for reasonable cause.
• Redundancy is considered a
‘reasonable cause’ and would
include terminations on grounds of
economic reasons, rationalisation in
industry, etc.
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Circumstances – India
• Termination for redundancy is a form
of retrenchment and would be
covered by the Industrial Disputes
Act, 1947 (ID Act).
• The ID Act applies only to
‘workmen’- which are a significant
majority of the workforce.
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Circumstances – India
• The circumstances in which a
redundancy termination(s) would be
justified are when the employer can
demonstrate that:
− The redundancy was genuine
− The procedure for carrying out such
redundancies was followed
− The statutory and contractual
severance payments were made 17
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Obligations – India
• There are no explicit requirements to
exhaust alternatives (such as
redeployment or adjusting shifts)
• Recommended that employer does not
hire individuals in a same/similar
capacity for a reasonable period of time
post-dismissals unless there is a strong
and justifiable business reason for
doing so. 18
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Obligations – India
• If employer is hiring, it must invite the
redundant workmen (who are citizens
of India and ‘workmen’ under the ID
Act) to offer themselves for re-
employment first
• If the company is unsure about being
able to show clear business reasons
for the termination, or unable to comply
with the strict termination procedure, it
may consider alternative approaches 19
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Circumstances – Philippines
• Redundancy exists where the
services of an employee are in
excess of what is reasonably
demanded by the actual
requirements of the enterprise
• Circumstances under which
employers can make redundancies:
− Over hiring of workers
− Decreased volume of business 20
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Circumstances – Philippines
• Cont’d
− Dropping of a particular product line or
service activity previously
manufactured or undertaken by the
enterprise
− Changes in business direction or
prospects resulting in the need for
reorganization, streamlining,
manpower rationalization, abolition of
position, etc. 21
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Circumstances – Philippines:
• Obligation to exhaust alternatives:
– No express obligation to exhaust
alternatives; however, prior
consultation with the affected
employees is required. Consultation
does not mean securing the
employees’ consent.
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Circumstances – Philippines:
• There is an obligation to:
– Exercise good faith (i.e., must have
legitimate business reasons)
– Use fair and reasonable criteria in
selecting employees to be dismissed
such as:
Less preferred status, e.g. temporary
employee;
Knowledge or skills, performance
Seniority 23
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Circumstances – Indonesia
Article 164 – Employment Law No. 13
of 2003
•Two years continuous financial losses
proven by audited financial statements
•Business efficiency reasons
•NB: Constitutional Court decision calls
into question legal basis for redundancy
unless permanent total closing
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Circumstances – Indonesia
Constitutional Court Decision No.
19/2011:
• Efforts should be made to avoid plant
closing including:
− Reduce wages and facilities of
management
− Reduce shifts, hours and overtime
− Reduce work days, provide unpaid leave
− Early retirement / attrition
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Circumstances – Indonesia
Cont’d
• Query impact of this decision on
redundancy?
• But no corresponding legal requirement
and no stare decisis
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Circumstances – Singapore
• Not expressly stipulated
• In general, when cost-cutting
measures have been implemented,
but restructuring and retrenchment
are still needed to keep the business
viable
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Circumstances – Singapore
• No express obligation for companies
to explore alternatives before making
redundancies
• “Tripartite Guidelines on Managing
Excess Manpower” (which do not
have force of law) recommend
various alternatives to redundancies
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Circumstances – Malaysia
• Before employees can be considered
redundant, employers must prove that
there is a need retrench. The accepted
justifications for retrenchment are:
– Business loss – Malaysia Industrial
Court requires cogent proof to justify
retrenchment on the grounds of loss of
business.
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Circumstances – Malaysia
– Reduced turnover – A declining trend of
business normally indicates a reduction
of the company’s profits that would
justify a reduction in the output and
workforce; must be significant decline
– Contracting out – Malaysia Industrial
Court has recognized that an employer
may hive off or contract out part of its
business to a third party to maintain
efficacy of its undertakings. 30
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Circumstances – Malaysia
• In these situations, employees can be
considered redundant on the following
ground:
– Where job no longer exists or was
abolished, or where the job and duties
underlining the position had diminished
greatly
– Where the job still exists but the
business requires fewer employees to
do the same nature of job 31
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The process employers need
to follow before making
redundancies
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Process – Indonesia
• Written notice of proposed
redundancy
• Mandatory mediation by Ministry of
Labor
• Labor Court application, trial and
decision
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Process – Indonesia
Compensation
• If two years’ continuous financial losses:
– Basic severance pay
– Basic service pay
– Compensation
health + housing allowance (15% of
severance + service pay)
relocation allowance, if applicable
untaken leave
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Process – Indonesia
Cont’d
• If for reasons of business efficiency:
− Same as above except basic
severance becomes double
severance
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Process – Singapore
• Notify Ministry of Manpower
• Inform workers of impending
retrenchment as early as possible
• Provide notice of retrenchment
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Process – Singapore
• Pay retrenchment benefits/ex-gratia
payments if the company is obliged
under the employment contract, or
chooses, to do so
– Non-unionised employees: norm is 2
weeks – 1 month’s salary per year of
service
– Unionised employees: norm is 1
month’s salary per year or service 37
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Process – Singapore
• Payment of benefits – non-union
employees
− Non-union employees covered under
the Employment Act and who have
been continuously employed for 3*
years or more may receive (but are
not entitled to) retrenchment benefits
*the Act was recently amended to 2 years effective 4/1/15
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Process – Singapore
• Cont’d
– If no retrenchment benefit clause in
employment agreement, little
difference between termination due
to redundancy or by notice
– Employees still entitled to notice
period / pay in lieu
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Process – Singapore
• Payment of benefits –unionised
employees
– Court may order retrenchment benefits
if employees are part of a union, even if
the employment agreement does not
stipulate retrenchment benefits
– Where employees are represented by a
trade union, the dispute may be
referred to arbitration under the
Industrial Arbitration Court 40
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Process – Malaysia
• Item 20 of the Malaysian Code of
Conduct of Industrial Harmony: where
redundancy is likely, employers should
take positive steps to minimise
reductions of workforce:
– Limiting recruiting
– Restricting overtime; working on day of rest
– Reducing number of hours/shifts/days
worked in a week
– Re-training and/or transferring to other
department/work
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Process – Malaysia
• Item 21 of the Malaysian Code of
Conduct of Industrial Harmony
states:
“Before any decision on reduction is
taken, there should be consultation
with the workers or their trade union
representatives.”
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Process – Malaysia
• Section 60N of the Malaysia
Employment Act 1955 provides that:
“Where an employer is required to reduce
his workforce by reason of redundancy
necessitating the retrenchment of any
number of employees, the employer shall
not terminate the services of a local
employee unless he has first terminated
the services of all foreign employees
employed by him in a capacity similar to
that of the local employee.” 43
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Process – Malaysia
• Notice to employees/compensation
• Employees not covered under the
Malaysia Employment Act 1950
• In absence of any express contractual
clause, the employee should be given
reasonable notice
• Employer should observe provisions of
the Collective Agreement
• Employer required to inform the
nearest Labour Department
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Process – New Zealand
• A New Zealand employer must
follow a procedurally fair process for
redundancies, which includes:
– Consultation (prior to the decision
being made)
– Access to relevant information (and
an opportunity to comment)
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Process – New Zealand
• Cont’d
– Considering alternatives to dismissal
(e.g., retraining, transfer or
redeployment)
– Statutory ‘good faith’ duties apply
• Notice and redundancy compensation
are not mandatory: based on contract
or policy
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Process – Australia
• Notice of termination
– Minimum notice periods in Fair Work
Act, based on length of service
• Redundancy pay
– Minimum severance payments in Fair
Work Act, also based on length of
service
– Union agreements often provide for
more 47
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Process – Australia
• Outplacement assistance
– No legal obligation to provide
– Common practice for larger employers
• Mediation/court involvement
– No legal obligation to provide
– Could arise from employee/union
initiation of legal proceedings, where
employer breaches any of the above
requirements 48
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Process – India
• The procedure to be followed for
redundancy terminations and the
payments to be made vary,
depending on:
– Place of employment
– Position and role of the individual
within the organization
– Length of service
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Process – India
50
OBLIGATIONS OF THE EMPLOYER
- Employee is a workman - Has completed 1 year of continuous service
- 1 Month Notice or pay in lieu
- Retrenchment Compensation
-Notify the Government
Commercial Establishment
- 3 Month Notice or pay in lieu
- Retrenchment Compensation
-Approval of the Government
Factory/Plantation/Mine (>100 employees)
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Process – India
• Last in-first out
− When retrenching an Indian citizen in a
particular category of workmen,
employer must retrench the last person
to be employed in that category
− LIFO rule is meant to ensure that
employees are treated equitably
− If employer retrenches a more senior
workman, the reasons must be recorded
in writing and made known to the
workmen
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Process – Philippines
• Procedural due process
− Announcement/Consultation
− Service of written notice to the affected
employees and the Department of Labor
and Employment (“DOLE”)
− Payment of separation pay (or: execution
of a quitclaim document simultaneous to
the release of the separation pay)
− If employer is a unionized establishment,
the provisions of the CBA will govern
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Process – Philippines
• Notice
− Individual written notice of
termination must be served to each
affected employee
− Written notice must be submitted to
the DOLE– Regional Office where
the employer’s business is located,
together with a completed
Employment Establishment Report 53
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Process – Philippines
• Cont’d
− Both notices must be served at least
30 days before the intended date of
termination. (Payment in lieu of
notice is prohibited)
− Employer may opt to not require the
employees to report to work
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Process – Philippines
• Separation pay
− Separation pay shall be equivalent
to at least one month’s salary, or one
month’s salary for every year of
service, whichever is higher
− Where the employer has a more
favorable company policy or
practice, the benefits provided
thereunder will apply 55
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Remedies available to employees
if the employer breaches its
obligations
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Available Remedies to Employees –
India
An employee may bring a legal claim of
wrongful termination against the company.
If the company is unable to demonstrate
that: (i) there is a genuine business
rationale for the redundancy terminations;
(ii) the appropriate termination procedure
has been followed; and (iii) the employees
have been paid their entitled dues on
termination, the following remedies may
exist 57
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Available Remedies to Employees –
India
– The courts may order the employer to
reinstate the employee
– The courts may order the employer to
pay compensation to the employee
– The courts may order the employer to
reinstate the employee along with
payment of back wages and/or
compensation
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Available Remedies to Employees –
India
• Statutory period of limitation for
wrongful dismissals is three years
under the ID Act, but courts regularly
condone delays and accept claims
beyond three years
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Available Remedies to Employees –
Philippines
Violation of Substantive Due Process
• The employee may file a complaint for
illegal dismissal with the National Labor
Relations Commission (NLRC)
• Where dismissal is declared unlawful
or illegal, the employee shall be entitled
to:
– Reinstatement without loss of seniority
rights or separation pay
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Available Remedies to Employees –
Philippines
• Cont’d
– Full back wages (to be computed from
the time of dismissal up to the time of
reinstatement)
– Damages, where dismissal is done in
bad faith
– Attorney’s fees (usually 10% of the
total monetary award)
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Available Remedies to Employees –
Philippines
Violation of Procedural Due Process
• The employee may file a complaint for
damages with the NLRC
• Where there is a violation of procedural
due process the employee shall be
entitled to PhP50,000.00 as nominal
damages
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Available Remedies to Employees –
Indonesia
• No unilateral termination by employer
• Redundancy can only be implemented
with:
– Employee written consent, or
– Labor Court approval
• Otherwise employee remains on
payroll and, if not, may seek
reinstatement order 63
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Available Remedies to Employees –
Singapore
• Civil action for retrenchment
benefits: damages
– For non-union employees, not easy
unless retrenchment benefits are
provided for in employment
agreement
– For union employees, may be able
to argue successfully based on
factors considered by the courts
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Available Remedies to Employees –
Singapore
• Representation to Minister of
Manpower [Employment Act Section
14(2)]
– Where there has been dismissal
without “just cause or excuse” [even
if employee is terminated with
notice!]
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Available Remedies to Employees –
Singapore
• Cont’d
– Redundancy situation may amount
to just cause or excuse but employer
may need to prove the same
– Minister can order compensation or
reinstatement of employee
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Available Remedies to Employees –
Singapore
67
Does the employee have a clause in his employment agreement providing for retrenchment benefits in the
event of redundancy?
Retrenchment benefits are to be determined in
accordance with the clause
Is he part of a union?
Retrenchment benefits to be agreed upon; if no agreement, the
matter can be referred to the Industrial Arbitration Court
No obligation to pay retrenchment benefits. However, if the
employee goes to the Ministry of Manpower, the Ministry may try to convince the employer to provide
some retrenchment benefits
No Yes
Yes
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Available Remedies to Employees –
Malaysia
• Employees terminated on the ground
of redundancy may file a written
complaint to the Industrial Relations
Department
• In the event the employer is not able
to prove the redundancy, the
termination of the employee is found
to be without just cause or excuse 68
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Available Remedies to Employees –
Malaysia
• If the Industrial Court finds that
reinstatement is not a suitable
remedy, it will order the employer to
pay compensation in lieu of
reinstatement
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Available Remedies to Employees –
New Zealand
• Personal grievance claim: ‘unjustified
dismissal’ - Employment Relations Act
2000
• Test: whether employer’s actions were
what a ‘fair and reasonable’ person
could have done in all circumstances:
– Genuineness of the redundancy
– Whether the employer followed a
procedurally fair process. 70
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Available Remedies to Employees –
New Zealand
• Remedies include:
– Reinstatement
– Reimbursement of lost wages
– Compensation for distress/loss of
benefits
– Costs
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Available Remedies to Employees –
Australia
• Dismissal not a “genuine redundancy”
and found to be harsh, unjust and
unreasonable reinstatement,
compensation
• Failure to consult over redundancies in
breach of award/agreement
injunction (redundancies on hold),
penalties up to A$55,000 for a
corporation 72
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Available Remedies to Employees –
Australia
• Failure to provide statutory notice or
redundancy pay compensation,
penalties up to A$55,000 for a
corporation
• Failure to meet statutory consultation
requirements (15+ redundancies)
“appropriate” orders, but not
reinstatement, compensation,
severance pay, etc. 73
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