managing across borders nhrma 2016 (no … · 9/2/2016 1 managing across borders presented by: tahl...

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MANAGING ACROSS BORDERS

PRESENTED BY:TAHL TYSON

Bon Voyage!

You are sending a US VP of Sales to London to manage the EMEA team.

What do you want her to know to be successful?

Political and Economic Differences with the U.S.

• Organized labor often politically powerful

• Higher unemployment and generous welfare benefits

• Government puts burden on business to support workers to avoid burden on State

• More limited job and geographic mobility

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Outside the US: The big differences

• Right to employment

US stands alone with employment at-will

European laws favor a right to be employed (also many Asian and LATAM countries)

• Duty to confer/consult

Representation is broader outside the US

Duty to confer exists even without collective agreements

• Leave rights

Vacation required by law

Greater rights to job-protected leave

• Rights upon termination

Lengthy notice, or pay in lieu of notice is required plus severance in redundancy

• Privacy rights

Collection and use of personal data is more restricted

Common ground

Law of contracts is similar Discrimination laws are newer and

coming into parity with USSimilar protections for similar groups of

disadvantaged groups– e.g. race, ethnicity, national origin, religion,

age, gender, pregnancy, disability. . .

Damages are uncapped (as compared to unfair dismissal)

Restrictive covenants Similarly disfavored, but enforceable

under similar circumstances

Try it Out

You are the new head of HR for a fast multinational company which has operation is 20 countries.

The company wants to announce that it is embarking on a cutting edge shake up of the organization to streamline operations and align with newly defined business lines.

YOU are tasked with drafting the global announcement.

What immediate issues come to mind?

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Employment Contracts

• Many countries written terms required

• Some countries make policies part of contract others avoid this

• Best practice: have excellent templates applicable to the role

• UPDATE regularly, AUDIT• Keep contracts of key people

centrally • Dual language

UK Employment Contracts

Certain written terms required Material change must be agreed Essential toolbox for managing

Breadth and flexibility of duties Place of work Hours Holiday, sickness absence Grievance, discipline Confidentiality and data protection Non-competes and restrictions Intellectual property Termination Garden leave

20 pages not unusual

Try it Out

• You are asked to prepare the groundwork to hire employees in the company’s first office in the Czech Republic.

• What questions do you jot down to ask about employment contracts prepare for your first call with legal counsel.

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Managing Performance Problems

Greater protections against dismissal means….

Managing performance problems

• Greater protections against dismissal means that: Genuine opportunity,

sufficient time for performance improvement requiredCareful documentation Can take a long time - or be

prepared to pay settlement for quick resolution

Managing Performance ProblemsUnited Kingdom

UNFAIR DISMISSAL

Protection after 2 years (unless a special trigger – e.g. discrimination, whistle-blowing)

Requires fair reason and fair process

Fair reasons: Capability, redundancy, misconduct, retirement, illegality, other “substantial reason”

Financial loss max 52 weeks pay (£78,962 cap) (“compensatory award”)

Further small award dependent on age and length of service, max 30 weeks pay (£14,370 cap) (“basic award”)

Can seek reinstatement (rare)

No limit to award for certain health & safety, whistle blowing or discrimination claims

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Managing Performance ProblemsUK

Fair Process:• Investigate

• Invitation to a meeting with a companion

• Hearing, with notes shared.

• Right of appeal

Performance Management and Bullying Claims

• Repeated less favorable treatment of a person by another or others in the workplace

• Making managerial decisions about poor work performance, making disciplinary action, and directing and controlling the way work is carried out is not bullying

• If a management action is reasonable and carried out in a reasonable way, that is NOT bullying

• However, even a reasonable management action may constitute bullying if it is carried out in an unreasonable manner

Bullying Claims

• France has specific provisions in labor code and criminal code that prohibit

bullying.

• In USA, Germany, the UK and Russia, no single piece of legislation regulates

bullying. But employee may bring claim by using instances of bullying as basis for

claims for:

constructive dismissal;

harassment relating to a "protected characteristic" (in the USA or UK); or

unlawful discrimination (in the case of the USA, Germany and the UK, relating to

a "protected characteristic").

• Japan has a specific law against “pawa hara”

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Bullying Claims

• France: Employers have strict obligation to ensure employees

safety.

• UK: Employers have a defense to claim if it can show that it took all

reasonable steps to prevent such harassment and/or discrimination

Steps could include:

Strategies that reduce risk of bullying

Framework for dealing with bullying allegations/ occurrences

Anti-bullying policies

Training for managers

TerminationFrance

To terminate you must: Have “real and serious cause”

Follow legal dismissal procedure

Pay termination indemnities

TerminationFrance

Personal Grounds: Poor job performance (incapability) may be real

and serious cause:Failure to attain fixed levels of performance (e.g.,

sales)Requirements must be reasonableEmployee was supported to meet objectivesObjective and obvious evidence required

Loss of confidence in employee:Must not be subjectiveBased on facts that make relationship impossible

If gross misconduct, no termination indemnities

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Dismissal proceduresFrance

Dismissal Procedure (Personal Grounds): Letter inviting employee to

preliminary meeting entretienpréamble

Preliminary meeting; may be assisted by colleague/advisor

Send formal dismissal letter no sooner than 2 days after

Dismissal CostsFrance

Legal Costs of Termination: Accrued vacation

Notice pay if released from working

Severance indemnityIf faute grave – only accrued vacation

If faute lourde – nothing

Wrongful termination indemnities: not less than 6 months salary

Performance Improvement PlanFrance

• Notification: meeting, written notice of concerns (‘warning’)

• PIP in writing

• 6 months renewable timeframe

• Document appraisal of resultsif failure, consider incapability dismissal

follow the termination formalities

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Try it Out

• Review case scenario and confer with your group

• What are the issues

• What do you think you need to do

• What questions will you ask your employment law advisor

The Absent Employee

What should you know about working time and absence management for cross-border teams?

Working time

• UK

– 48 maximum weekly hours

– Opt out from 48 hour cap possible subject to right to cancel upon 3 months notice, and subject to health & safety requirements (including legal obligation to prevent stress).

– Overtime pay not required

• Australia

– 38 maximum weekly hours

– Can be required or requested to work reasonable additional hours.

– Overtime payments may be mandatory

What should you know about working time for cross‐border teams?

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Leave and Job Protections

• In the U.S., leaves for pregnancy, caring for a new baby or adopted child, or caring for a family member with a serious health condition are limited and, with some exceptions, are generally unpaid

• Managers on assignment need to be prepared for some of their assumptions on work life balance to be challenged

European Leave Laws

England– 52 weeks statutory

maternity/adoption leave with 39 weeks statutory pay

– Cannot return to work within 2 weeks of birth

– 2 weeks paternity leave

– 50 weeks shared

European Leave Laws

France– 16 weeks fully paid maternity

leave– Parents who have been

employed at least one year are entitled to unpaid leave for up to 3 years, with guaranteed return to same or equivalent job

Italy– An employee on temporary

sickness leave cannot be terminated for up to 12 months

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AUSTRALIA Parental Leave & Related Entitlements

Rights apply to same sex couples 12 months service before qualify 12 months unpaid leave for the birth of a child or

the placement for adoption of a child under 16 available to both parents

The right to request an additional 12 months leave– Request in writing 4 weeks before expiry of initial

12 month period of leave – Employer must respond in writing within 21 days– Refusal only on reasonable business grounds

N

Requests for Flexible Working Arrangements

• An employee has the right to request a change to working arrangements if they have 12 months continuous service and are parents of, or have responsibility for the care of, a child under school age, or a child with a disability under 18.

• E.g. change to hours of work; patterns of work; change to work location

UKFinally…Flexible Working for All!

Right to request flexible working:

• Previously for family caring responsibilities

• Now anyone who has 26 weeks service

• One request in 12 months

• Can only refuse if business reasons for doing so

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Bottom line

• Managing successfully across borders means being strategic about dealing with the different country-specific requirements that affect your workforce

MANAGING ACROSS BORDERS: AT-A-GLANCE COMPARISON OF SIGNIFICANT EMPLOYMENT LAWS

The employment relationship

US UK Australia

What governs the fundamental terms of employment relationship?

Employment is at‐will: Both the employer and the employee have the right to terminate the relationship at any time for any lawful reason.

The right to terminate at‐will includes the right to lesser actions such as changing the job, duties, compensation.

Employee terms and conditions governed by written employment contract, common law, statutes and regulations.

EU law also applies (Directives implemented by member states, and cases decided by the European Court of Justice.

Employee terms and conditions governed by Fair Work Act, statutory modern awards and written employment contract.

“Modern Awards” are industry and occupation based minimum statutory terms and conditions of employment (including entitlements) that apply to most Australian employees.

How are employment contracts relevant?

Generally limited to unionized workforce, some senior executives, and sales or commission plans.

For most of the workforce, contracts are considered unnecessary limits to employment at will.

Employers go to great lengths to ensure that policies and practices do not alter employment at‐will.

Certain minimum terms and conditions are required to be written for every employee.

Any change to an employees’ job, status or compensation is considered a change of contract and requires formal documentation.

Additional terms include: breadth and flexibility of duties; confidentiality, data protection; restrictive covenants, notice period, garden leave.

Probationary periods are common up to 6 months;.

Employment contracts are the foundation of the terms and conditions of employment relationships.

Minimum terms in all contracts are those set out by the Fair Work Act and modern awards.

Any change to an employees’ job, status or compensation is considered a change of contract and requires formal documentation.

Are restrictive covenants (e.g. non‐ competes) enforceable?

Disfavored as a restriction on trade and employment, but often enforceable if narrowly crafted and reasonable in geographic scope and duration.

Significant variation by state and unlawful in California.

Non competes are presumed void as restraint on trade unless proven necessary and reasonable.

If you overreach, the entire restraint will be void, rather than reduced.

Generally enforceable, but will be void if over broad. New South Wales only state that permits courts to reduce restraints to be enforceable.

Collective Bargaining

Unions have been on the decline for many years.

Limited to non‐managerial employees.

More typical in blue collar workplace. However some financial/investment institutions remain unionized due to legacy retail banks.

Collective consultation required with elected representatives for collective redundancies (layoffs), and in some M&A situations.

If the majority of employees want to bargain, the employer must bargain.

Many different unions may cover employees at a single workplace.

Consultation generally required for any workplace change regardless of whether unionized.

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The employment relationship

Hong Kong Singapore Japan China

What governs the fundamental terms of employment relationship?

Employment primarily based on contract

Specific requirements by the Hong Kong Employment Ordinance and other statutes and regulations apply.

Employment primarily based on contract

Only limited statutory governance and regulatory structure as compared to European countries.

Common law system in which court cases follow UK precedent.

Extremely complex system of labor statutes and regulations that are very protective of and favorable to employees.

China has substantial workplace rules and regulations on both the national and local level.

Numerous administrative regulations impact the employment relationship as wells as individual or collective contracts may impact the employment relationship.

How are employment contracts relevant?

Employment contacts required in writing or oral or a combination. Written contracts are the norm in professional industries.

Written employment contracts are generally not legally required but are the norm. Contracts for part time workers must have certain terms.

Contracts are very significant to the Japanese employment system.

Employers are required to explicitly specify certain employment terms, including the duration of the employment contract, workplace and work content, hours and days of work, shifts, wages, termination conditions, retirement allowances, bonuses, meals, safety and health, vocational training, accident compensation, commendations and sanctions, and suspension of work.

Written contracts are mandatory, and punitive fines may be imposed for employment of workers not subject to written contract.

Numerous essential terms must be included in the contract, including working hours, job description, and pay, and will be enforceable by the employee.

Are restrictive covenants (e.g. non‐ competes) enforceable?

Restrictive covenants are presumed void, but may be enforced if reasonably limited as to time and scope.

Restrictive covenants of reasonable time and scope will be enforced if supported by a protectable interest (i.e., confidential information). Follows UK case precedent.

Restrictive covenants are only enforceable under limited circumstances. In addition to being limited to the restrictions reasonably necessary, agreements containing restrictive covenants must also be supported by work rules. Restrictions will not be considered reasonably necessary unless there is a need to protect trade secrets or other highly proprietary information.

Noncompetes of two years or less may be enforceable if supported by independent payment during the period of the post‐employment non‐competition restriction.

However, only relatively senior employees such as managers and skilled technicians may be subject to such restrictive covenants.

Collective Bargaining

HK has no specific collective bargaining statute. However, employees have the right to unionize.

law Workers' rights to collective bargaining and trade union membership are protected by statute.

Trade union membership is protected and common. Trade unions may bargain with employers on behalf of employees and become involved in individual employment decisions.

Managing performance & separations

US UK Australia

Performance Management

Best practice but not legally required.

Important for defending claims of unlawful discrimination or retaliation.

Required for “fair dismissal” for eligible employees i.e. after 2 years.

Important for defending discrimination claims, breach of “trust and confidence.”

It can take many months or even years to validly terminate an employee for performance reasons.

Workplace policies, contract and modern awards may apply regarding process.

Notice of Termination

Not required by either Employer or Employee, usually only in executive contracts.

Employee must be given written notice of termination or pay in lieu of notice – must be specified in the contract or minimum statutory notice.

Many employers provide more than minimum Employee cannot be required to give more notice than that given by employer.

Employee must be given written notice of termination or pay in lieu of notice – must be specified in the contract; otherwise “reasonable” notice (Note: up to 2 years may be considered required “reasonable” notice in some situations ).

Notice is up to 4 weeks (for 5+ YOS)

Plus 1 week for crew over 45 w/ 2+ YOS) and must be validly specified in an employee’s contract of employment.

Reason for Termination

Employment at will means that employees can be terminated at any time for any lawful reason (including no reason).

Fair treatment in termination is best practice for defending employment discrimination and retaliation claims.

Employees protected from unfair dismissal after 2 years of employment.

Fair reason: capability, redundancy, illness (though not in the case of disability) misconduct, retirement, illegality, other “substantial reason”

Employees protected from unfair dismissal after 6 months of employment.

Employees also have protections under the “general protections” provisions of the Fair Work Act from breaches of their “workplace rights”. This includes protections from discriminatory decisions, unlawful termination, employer coercion etc.

Termination must be for “valid reason” and procedurally fair. Also, must not be a “prohibited” reason i.e. discriminatory.

Must refer to policies, contract and modern awards to determine any obligations that exist regarding process.

Managing performance & separations – Continued


Performance Management

Termination without notice or pay in lieu of notice requires a showing of misconduct after warning, fraud, or habitual neglect in the face of warning.

Thus, performance management will typically be a prerequisite to any for cause (no notice) termination.

Employers must keep records of employees' performance and conduct, and a decision to dismiss should be based on documented poor performance or misconduct.

Accordingly, performance management is recommended in order to avoid claims of dismissal without just cause or excuse, (for employees subject to the Employment Act.)

Employers of ten or more employees are required to implement formal work rules that cover, among other things, matters pertaining to termination of employment.

Terminations must be on objectively reasonable grounds and consistent with work rules, so active performance management is necessary.

Evidence in support of disciplinary decisions in employment is critical, both in relation to trade union involvement and before relevant tribunals if dismissal is challenged.

Accordingly, performance management is essential for providing necessary documentation if an employer seeks to terminate an employment contract without the consent of the employee.

Notice of Termination

Notice periods are set by contract. Absent a contract, notice must be at least one month. Pay in lieu of notice is acceptable.

With notice, termination may be for any reason. Without notice termination requires serious, demonstrable misconduct, fraud, or neglect.

Notice of termination must be "reasonable" under common law. Generally, appropriate notice may be two to three months for ordinary employees, and up to 12 months for executives. Notice periods may be set by contract.

Pay in lieu of notice should also be specified by contract. Otherwise, it could technically be considered a breach of contract to give pay in lieu of notice, although in practice employers often do so.

Subject to certain exceptions, the employer must give at least 30 days notice or pay in lieu of notice.

Under certain circumstances, termination without notice is permitted. In general, however, written notice of at least 30 days prior to termination is required.

An equivalent of one month's salary in lieu of notice may be paid.

Reason for Termination

With notice or pay in lieu of notice, termination can be for any lawful reason.

No specific reasons are required, but employees may bring suit for dismissal "without just cause or excuse."

Termination must be on objectively reasonable grounds. In practice, this means that, other than genuine redundancy, termination is only appropriate in circumstances of workplace misconduct or breach of discipline.

Terminations must be for cause, must be consistent with employment contracts, and are closely scrutinized, so consistent and substantial documentary support is necessary.

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US UK Australia

Severance No entitlement

An employer can choose to adopt a severance plan, the terms of which will govern severance.

In the absence of a plan, an established practice of severance can be deemed an enforceable severance plan.

Vanguard does not have a US severance plan.

No entitlement except by contract, which is not common, or in case of redundancy.

Entitlement to severance/redundancy payment of up to 16 weeks’ pay (see below under redundancy). Based on employee’s length of service at the time of dismissal due to redundancy.

Additional state entitlement of all employees to receive Long service leave payout. Employees are entitled to take long service leave after 10 years of service. If employment terminated any time after e.g. 5 years in NSW or 7 years in Vic, for any reason (even due to resignation) employee to be paid out pro‐rata entitlement.

Illegal to “cash‐out” LSL entitlement except upon termination.

Entitlements vary slightly from state to state.

YOS approx. one week per 60 weeks of service.

Redundancy WARN – requires 60 days notice for plant closings or mass layoffs. Pay in lieu of notice is generally defensible.

Must show the redundancy is genuine and consult before making a final decision; follow prescribed process and consider all possible alternatives

Failure to consult meaningfully on a collective basis has penalty of up to 90 days’ pay per affected employee

If redundancy, pay is a factor of age and length of service. (1‐20 weeks pay)

An employer may be restricted for a period of time in hiring a replacement for the redundant role.

Redundancy pay of 4‐16 weeks (for 1 – 10+ years of service) (as detailed above)



Severance Employees who have been employed at least 24 months are entitled to a payment, typically approximately two‐thirds of a month's salary.

Longer serving employees may be entitled to a long service payment that is substantially larger than a typical severance payment.

There is no right to severance pay unless provided for by contract, with the exception of pregnant employees who are dismissed.

No rule regarding severance pay. Severance pay is required and varies by location. Typically, an employee must be paid severance of one month's salary for each full year of service.

The monthly severance payable will capped at three times the average monthly salary for each locality, as established by the government.

Redundancy No special rules other than severance requirements.

No specific rules for layoffs. May implicate obligations under employee contracts or collective bargaining agreements.

Layoffs are subject to strict rules including an ability to articulate why reorganization is necessary, what was done to avoid the necessity, what procedures ensure the worker selection was fairly done, and whether appropriate consultations with the workers occurred.

Layoffs are subject to fairly strict rules, and must be approved in advance, which requires preparing detailed plans as well as extensive consultation with affected workers.

Discrimination statutes & remedies

US UK Australia

Protected Classes Title VII (race, age, sex, national origin, ethnicity, religion)

Pregnancy

ADA (disability discrimination and accommodation obligations)

Age Discrimination (40+)

Genetic Discrimination

Sexual Orientation (pending federal legislation;currently covered by some state and local laws)

Similar to Australia and US, does not include some e.g. physical features. Can include caste discrimination.

Race, color, nationality, descent, ethnicity, nationalorigin, social origin; sex; pregnancy (or potentialpregnancy); family or career's responsibilities;breastfeeding ; parental or career's status; physicalfeatures; employment activity; industrial activity;religious belief or activity; marital status; sexualorientation; gender identity; disability; age; politicalbelief or activity; criminal record; or association witha person who has any of the above attributes.

Bullying Bullying not based on a legally protected status is not legislated.

Strict anti‐bullying laws.

Unreasonable, humiliating or harsh management style can lead to liability.

Employer may be liable in personal injury for failure to prevent bullying.

Strict anti‐bullying laws.

Occupational Safety laws also include protection for bullying and workplace stress. Managers can have personal liability.

Consequences for Unfair/ Unlawful Dismissal

Generally remedies for discrimination under federal statutes is punitive and compensatory damages up to $300,000 plus lost wages and attorneys fees; state law remedies can be uncapped. Jury verdicts can be extraordinary. Reinstatement is possible.

Compensatory award capped at £74,200

Reinstatement possible

Uncapped for certain claims, e.g. whistle blowing and discrimination claims.

Unfair dismissal capped at up to 6 months’ pay (subject to certain requirements).

Reinstatement primary remedy where possible.

Some claims are uncapped

Class Actions Common (and expensive) in employment cases against large employers. Common claims include overtime lawsuits and “pattern and practice” discrimination.

Generally not applicable Generally not applicable

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Discrimination statutes & remedies


Protected Classes Sex, disability, pregnancy, family status, union membership

Only limited protections compared with U.S. Age, pregnancy, maternity leave, union membership or involvement.

Political belief, economic or social status, race, creed, sex, family origin, age, part‐time status

Ethnicity, race, sex, religion, nationality, disability. There are also numerous rules for miscellaneous categories of workers, such as rural workers seeking employment in cities.

Bullying Bullying not based on a legally protected status is not legislated.

Harassment based on protected status prohibited. Otherwise, no specific regulations.

Employers are obligated to provide safe and orderly workplaces, or risk having to pay compensation to affected workers.

Bullying is prohibited by general anti‐harassment laws, which are not limited to harassment against protected categories of workers.

Consequences for Unfair/ Unlawful Dismissal

An order for reinstatement, an order for reengagement in a comparable position, award of termination payments, and award of compensation (i.e., wages lost by reason of termination).

Damages. Reinstatement, potentially including compensation.

At the option of the employee, reinstatement or compensation equivalent to twice statutory severance where unfair dismissal is found to have occurred.

Class Actions Class representation is not permitted. Every affected claimant must join suit.

Not recognized. Not recognized Where ten or more employees join in a labor dispute, they may select a single employee to represent them.

Terms & benefits

US UK Australia

Hours No maximum under federal law

Some variation under state law

48 maximum weekly hours

Daily and weekly rest breaks apply too

Opt out from maximum is possible subject to right to cancel upon 3 months of notice to employer, and subject to employer’s health and safety requirements (including legal obligation to prevent workplace stress).

No overtime pay required

38 Maximum Weekly Hours

Can be required or requested to work reasonable additional hours.

Overtime payments may be mandatory as per applicable modern award terms.

Flexible Work Arrangements

No entitlement

Could be required as part of a reasonable accommodation for a disability

Legal right to request flexible working after 26 weeks for parents and careers, soon to be extended to all workers. Employer must consider but not obligated to grant request.

Note: Our UK Crew Handbook says that any employee can make an application for Flexible Working Arrangements regardless of service.

Right to request a change to working arrangements if the employee has 12 months continuous service and are parent (or responsible) for a child under school age or disabled child under 18

Some state discrimination laws extend this. For example, in Victoria, requests for flexible work arrangements from employees with children of any age or who care for elderly parents must also be considered

Employer can only refuse requests upon reasonable business grounds – evidence

Statutory Protection for Part Time & Fixed Term

None Statutory protection to ensure equal treatment in remuneration and other conditions for part‐time, fixed term, and agency staff with 12 weeks service (subject to some qualifications).

Example: Individual performance bonuses given to employees must also be given to agency workers with 12 weeks service, and pro rata to part time and fixed term workers. Temporary workers are not entitled to bonuses linked to company performance.

Same benefits and protections for part‐time and fixed‐term employees. Also many of the same benefits and protections also apply to casual employees but many of leave entitlements of casuals are unpaid entitlements.

Terms & benefits


Hours No specific restrictions on hours of work, other than statutory minimum holidays and requirement of at least one day off per week.

Manual laborers, maintenance workers, and other similar workers enjoy special protections as to hours worked, including breaks, overtime, and a weekly mandatory day off.

Other categories of workers do not have hours restrictions.

Strict overtime restrictions and additional pay requirements for hours over 40 per week, late night work, or on statutory holidays.

Does not apply to supervisors or managers (except late night work restrictions).

Generally, strict overtime payment requirements for work in excess of eight hours per day or 40 hours per week.

Flexible Work Arrangements

No specific requirements or restrictions. Typically governed by contract.

No special requirements; left for negotiation between employer and employee.

Flex‐time arrangements are mandatory if requested for employees with child raising responsibilities or for employees caring for family members.

Flexible working schedules may be requested for certain categories of workers, but must be approved by labor authorities.

Statutory Protection for Part Time & Fixed Term

No specific protections other than those applying to all employees.

Special protections exist for part‐time workers, including requirements for contract terms, including working hours and days.

Special rules regarding rest days for part‐time workers.

Protections in place for both part‐time workers and workers entitled to flex‐time.

Certain protections in place. No probationary period allowed for part‐time workers.

Payment must be according to certain schedules, with no more than 15 days between paychecks.

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Terms & benefits – Continued

US UK Australia

Medical Benefits Provided by employers Provided by State (National Health Service)

Private health care not required. If offered must be provided equally to part time and fixed terms staff, but not agency workers.

Provided by State.

No mandatory employer provided private health care – rare for employers to provide

Do employers have to provide a private pension benefit?

Not required – but if an employer chooses to offer, statutory rules govern

Mandatory “auto‐enrolment” of workers into pension required for all employers, who must pay a contribution depending on employer size i.e. 1%‐3%.

Employees can opt out of auto‐enrolment.

Mandatory superannuation (retirement) benefits must be paid for all employees – includes full‐time, part‐time, fixed‐term and casual workers.

Vacation/PTO No Right – set by employer

Terms, including payout upon termination governed by contract law, with several exceptions by state

Minimum paid annual leave is 28 days which can be inclusive of national public holidays.

Agency workers and some “freelance” workers also entitled.

Use it or lose it yearly ok except in case of sickness or maternity leave.

Unused days for year terminated must be paid out or taken during garden leave if required by contract.

4 weeks paid annual leave for each year of service for full‐time. Pro‐rata for part‐time

Shift workers entitled to 5 weeks

Entitled to cash out of balance upon termination and cashing out during employment permitted in some circumstances – must be done pursuant to a written cashing out agreement

Holidays No Right – set by employer Eight public holidays. Employer can request employee work on public holiday.

Employees entitled to all state and commonwealth proclaimed public holidays.

Employer can request employee work on public holiday but employee can refuse on reasonable grounds. If modern award covered, employee will be entitled to receive overtime rate pay or day off in lieu of public holiday.



Medical Benefits None required, other than mandatory worker's compensation insurance coverage.

Employer is required to cover the expense of employees' certification of statutory sick leave entitlement.

Otherwise, there is no obligation to provide health benefits.

Employers and employees must enroll in either a health insurance scheme managed by the government or by a health insurance association.

Premiums are typically borne in part by employees.

Employers are required to contribute to government worker's compensation, health, and maternity insurance programs.

Purchase of further private insurance is optional.

Do employers have to provide a private pension benefit?

No. However, there is a mandatory national public pension scheme to which all employers must contribute for each employee (five percent of employee income contribution, minimum).

No. However, there is a mandatory national pension system with specific contribution requirements.

In addition to two types of national pension systems, employers may voluntarily provide corporate pension programs.

These private plans are not legally required, however.

Both the employer and employee must make contributions to national pension programs, including pension insurance.

Private pension programs are not required.

Vacation/PTO Annual paid leave entitlement. Amount of leave increases with employment tenure, beginning with seven days of paid leave yearly and increasing to 14 days for employees with nine or more years tenure.

Employees with at least three months' service are entitled to seven days annual paid leave during the first twelve months of service. The annual leave entitlement increases by one day for each subsequent year of continuous service, up to 14 days annual leave per year. Part‐time employees receive annual leave on a pro rata basis.

Variable entitlement paid annual leave, depending on length of service, starting at 10 days for new employees and going upward to 20 days for employees with 6.5 or more years of tenure.

Shorter annual leave amounts for part‐time employees.

Variable paid annual leave required depending on length of service, beginning at five days for employees with at least one year of tenure and increasing to 15 days for employees with 20 or more years of tenure.

Holidays Twelve mandatory paid statutory holidays.

Eleven mandatory paid state holidays for employees covered by the Employment Act.

In addition to three national holidays, employers are required to provide "statutory holidays" to workers. These are days off at least one day per week or four days per four weeks.

They may be specified by the employer in its work rules. If the employee is required to work on these days, he or she will be entitled to extra pay.

Total of 11 public holidays per year, which may be taken as paid.

Work undertaken during holidays is subject to overtime pay.


US UK Australia

Maternity/Parental Leave/Adoption

FMLA – Unpaid right to 12 weeks

Some variations by state

One year with benefits (except contractual pay); priority rights in downsizing.

Statutory Maternity Pay (SMP) and Statutory Adoption Pay (SAP) is paid for up to 39 weeks:

90% of average weekly earnings (before tax) for the first 6 weeks; £136.78 or 90% of average weekly earnings (whichever is lower) for the next 33 weeks. Employer can recover a certain percentage of this back from the State which subsidizes maternity leaves.

Shared parental leave : partner can use part of leave if mother/partner returns to work.

Employees can also take unpaid parental leave to care for their children: up to 18 weeks to age 5, or to age 18 if adopted (within 5 years of placement) or age 18 if child is disabled.

Parental leave – entitlement to up to 12 months’ pay plus additional period of up to 12 months unpaid leave.

Employer can only refuse request for additional 12 months’ leave upon reasonable business grounds.

Open to either parent and upon adoption as well.

Paternity FMLA – Unpaid right to 12 weeks


2 weeks; 26 additional leave and pay if partner returns early from maternity leave

As above

Medical Leave FMLA – Unpaid right to 12 weeks


Employees are entitled to £86.70 per week Statutory Sick Pay (SSP) for up to 28 weeks.

See below.

Caregiver Leave FMLA – Unpaid right to 12 weeks


10 days paid personal/career’s leave for full‐time. Pro‐rata for part‐time

2 days of unpaid career's leave per occasion for casuals and where other employees have exhausted leave entitlements

2 days of paid compassionate leave per occasion upon death or serious injury/illness of immediate family member or household (includes de factors and former spouses, step children etc)

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Maternity/Parental Leave/Adoption

Entitlements to both paid and unpaid maternity leave.

Paid maternity leave. Amount of paid leave varies based on numerous factors.

Unpaid maternity leave available for up to six weeks prior to birth of a child and up to eight week after the birth.

Additional break requirements for nursing mothers, as well as exemptions from overtime or late night work.

98 days maternity, 15 of which are pre‐natal.

Paternity No entitlement to paternity leave.

No entitlement to paternity leave. No entitlement to paternity leave, but child care leave for male employees who are primary care givers may be available.

Paternity leave is frequently available, but is not nationally mandated.

Rather, localities have varying paternity rules.

Medical Leave Both paid and unpaid medical leave entitlements.

Paid medical leave for covered employees. No entitlement to unpaid leave.

Other than statutory leave for workplace injuries, there are no specific restrictions requiring medical leave. However, if unfair dismissal is alleged, tribunals will consider whether the basis for dismissal was due to medical problems requiring leave. Further, employers are required to follow any internal work rules regarding medical leave.

Substantial medical leave available, varying depending on tenure.

Caregiver Leave None required. Yes. Paid childcare and infant care leave available for covered employees. Amount varies based on numerous factors.

Yes, up to 93 days unpaid. Not on national level, but local regulations may provide for caregiver leave.

Privacy rights

US UK Australia

Background Checks

Permissible, but some limitations; regulations require notice, consent, and the opportunity to dispute the accuracy of the record.

Background checks that disproportionately impact racial or ethnic minority groups can be discriminatory unless justified by business necessity.

Some states have enacted strict restrictions on checking credit history.

Very limited due to privacy laws

Can conduct certain types of checks (i.e. Criminal Records) through the appropriate government agency if valid reason

Generally not permitted due to strict privacy laws

Can conduct certain types of checks if valid reason.

Drug Testing Generally permissible at the point of hire. State law varies as to the circumstances under which subsequent screening can be required.

Can be done under some circumstances but may violate disability protection and human rights laws.

Can be done under some circumstances.

Must consult with employees if seeking to introduce such a policy as per terms of modern awards.

Contingent Workers

No limitations on using contingent staff (i.e. through temp agency) but may have joint employer liability risk.

Significant exposure for damages and class action litigation costs for wrongful classification of employees as independent contractors.

Statutory protection for part‐time, fixed term and agency staff to ensure equal treatment and encourage hirers to hire regular staff.

Potential joint employer liability for agency staff.

Employees misclassified as independent contractors can result in tax and social charges, and other costs.

Employers must have Workers’ Compensation insurance for all workers, including contractors.

Privacy rights


Background Checks

Permitted. Privacy of results must be maintained by employer.

No restrictions. Permitted, subject to tight restrictions on privacy, the type of information gathered, and the handling of personal information.

Not regulated.

Drug Testing Permitted. No restrictions other than those imposed by employment contracts or collective bargaining agreements.

An employer may request drug testing for special occupational purposes, provided the testing is done according to certain strictures.

However, employees may refuse, although they may be disciplined for doing so if a strong grounds for testing exists (but not otherwise).

Not regulated.

Contingent Workers

Use of both temporary workers and independent contractors is permitted.

Definitions are similar to the U.S.

Misclassification risks are substantial.

Clear distinction between employees and contractors, with substantial misclassification risk.

Temporary, agency, and part‐time employees permitted, subject to specific restrictions.

Significant restrictions on the use of independent contractors.

Temporary agency workers permitted subject to restrictions.

Use of independent contractor, temporary, and agency workers is permitted.

Misclassification risks are substantial.

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