The Employment Law Review

Editor
Erika C Collins

Law Business Research

The employmenT law Review

Reproduced with permission from Law Business Research. This article was first published in The Employment Law Review, (published in March 2009 editor Erika C Collins). For further information please email Adam.Sargent@lbresearch.com

The Employment Law Review

Editor

eRika C Collins

law Business ReseaRCh lTd

PubLiShER Gideon Roberton buSinESS dEvELoPMEnT MAnAGER Adam Sargent MARkETinG ASSiSTAnT Hannah Thwaites EdiToRiAL ASSiSTAnT nick drummond-Roe PRoduCTion EdiToR Jonathan Cowie SubEdiToRS Jonathan Allen kathryn Smuland Charlotte Stretch EdiToR-in-ChiEF Callum Campbell MAnAGinG diRECToR Richard davey
Published in the united kingdom by Law business Research Ltd, London 87 Lancaster Road, London, W11 1QQ, uk 2010 Law business Research Ltd Copyright in individual chapters vests with the contributors no photocopying: copyright licences do not apply. The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of March 2010, be advised that this is a developing area. Enquiries concerning reproduction should be sent to Law business Research, at the address above. Enquiries concerning editorial content should be directed to the Publisher gideon.roberton@lbresearch.com iSbn: 978-1-907606-00-7 www.thelawreviews.co.uk Printed in Great britain by Encompass Print Solutions, derbyshire Tel: +44 870 897 3239

ACknoWLEdGEMEnTS
The publisher acknowledges and thanks the following law firms for their learned assistance throughout the preparation of this book: ALRud LAW FiRM bAShAM, RinGE Y CoRREA, SC bAYkAnidEA LAW oFFiCES CuATRECASAS, GonALvES PEREiRA dELoiTTE AdvokATFiRMA AS dEnTon WiLdE SAPTE EdWARd nAThAn SonnEnbERGS GiAnni, oRiGoni, GRiPPo & PARTnERS GidE LoYRETTE nouEL GiLbERT + Tobin GRAF & PiTkoWiTz REChTSAnWLTE GMbh hEEnAn bLAikiE LLP koChhAR & Co kRoMAnn REuMERT kYRiAkidES GEoRGoPouLoS & dAnioLoS iSSAiAS LAW FiRM LEE And Li, ATToRnEYS-AT-LAW LiEPA, SkoPiA/boREniuS ATToRnEYS AT LAW MAnnhEiMER SWARTLinG AdvokATbYR Ab MARvAL, oFARRELL & MAiRAL MAThESon oRMSbY PREnTiCE PALACioS, oRTEGA Y ASoCiAdoS PAuL, hASTinGS, JAnoFSkY & WALkER LLP PinhEiRo nETo AdvoGAdoS Shin & kiM SoTYSinSki, kAWECki & SzLE zAk STAMFoRd LAW CoRPoRATion TAYLoR WESSinG vAn dooRnE nv vAn oLMEn WYnAnT WALdER WYSS & PARTnERS LTd zYSMAn, AhARoni, GAYER & AdY kAPLAn & Co LAW oFFiCES

ConTEnTS

Editors Preface ............................................................................................................. 1 Erika C Collins

Chapter 1 ARGEnTinA..............................................................................................5

Enrique Stile and Javier Enrique Patrn Chapter 2 AuSTRALiA .................................................................................. 16 Dianne Banks, Peter Feros, Kim McGuren, James Pomeroy, Sarah Gray and Hanh Chau Chapter 3 AuSTRiA ........................................................................................ 28 Jakob Widner Chapter 4 bELGiuM ...................................................................................... 45 Chris Van Olmen Chapter 5 bRAziL ........................................................................................... 59 Luis Antonio Ferraz Mendes and Mauricio Froes Guidi Chapter 6 CAnAdA ........................................................................................ 67 Jeffery E Goodman and Christopher D Pigott Chapter 7 ChinA ............................................................................................ 79 K Lesli Ligorner Chapter 8 dEnMARk.................................................................................... 92 Marianne Granhj

Contents

Chapter 9

FRAnCE ....................................................................................... 103 Jrmie Gicquel

Chapter 10

GERMAnY .................................................................................. 118 Thomas Griebe

Chapter 11

GREECE ...................................................................................... 133 Effie Mitsopoulou, Nicholas Maheriotis, Ioanna Kyriazi and Ioanna Argyraki

Chapter 12

honG konG............................................................................ 146 Michael J Downey

Chapter 13

hunGARY .................................................................................. 162 Dniel Gera and Nelly Prokec

Chapter 14

indiA ........................................................................................... 176 Manishi Pathak and Sehba Kanwal

Chapter 15

iRELAnd .................................................................................... 189 John Dunne

Chapter 16

iSRAEL ......................................................................................... 204 Mor Limanovich and Tal Keret

Chapter 17

iTALY ............................................................................................ 214 Raffaella Betti Berutto and Filippo Pucci

Chapter 18

JApAn ........................................................................................... 226 Setsuko Ueno

Contents

Chapter 19

koREA ......................................................................................... 239 Young-Seok Ki and John Kim

Chapter 20

LATviA......................................................................................... 250 Sigita Kravale

Chapter 21

MExiCo....................................................................................... 263 Oscar de la Vega and Monica Schiaffino

Chapter 22

nEThERLAndS ....................................................................... 275 Els de Wind and Aedzer Oreel

Chapter 23

noRWAY ..................................................................................... 294 Gro Forsdal Helvik

Chapter 24

PoLAnd ...................................................................................... 306 Roch Paubicki and Sawomir Paruch

Chapter 25

PoRTuGAL ................................................................................ 319 Maria da Glria Leito and Diogo Leote Nobre

Chapter 26

RuSSiA.......................................................................................... 332 Irina Anyukhina

Chapter 27

SinGAPoRE ............................................................................... 347 Daniel Lim and Min-tze Lean

Chapter 28

SouTh AFRiCA ........................................................................ 358 Susan Stelzner, Stuart Harrison, Bradley Conradie and Zahida Ebrahim

Chapter 29

SpAin ............................................................................................ 373 Juan Bonilla

Contents

Chapter 30

SWEdEn ..................................................................................... 387 Henric Diefke

Chapter 31

SWiTzERLAnd ........................................................................ 397 Ueli Sommer

Chapter 32

TAiWAn ....................................................................................... 408 T C Chiang

Chapter 33

TuRkEY ...................................................................................... 417 Serblent Baykan and Handan Bektas

Chapter 34

uniTEd ARAb EMiRATES................................................... 426 Ibrahim Elsadig

Chapter 35

uniTEd kinGdoM ............................................................... 436 Christopher Walter and Helena Laughrin

Chapter 36

uniTEd STATES ...................................................................... 449 Patrick Shea

Chapter 37

vEnEzuELA ............................................................................. 460 Jos Manuel Ortega P

Appendix 1 Appendix 2

AbouT ThE AuThoRS......................................................... 475 ConTRibuTinG LAW FiRMS ConTACT dETAiLS .... 505

Chapter 27

singapore
Daniel Lim and Min-tze Lean*

INTRODUCTION

The relationship between the employer and employee is regulated largely by contract, and the parties are generally free to contract as they choose under an employment contract, subject to certain statutory requirements and limits as provided for principally in the employment act (the act), the latest amendments to which came into effect on 1 January 2009. The act applies to certain categories of employees (protected employees) and with the exception of certain salary protection provisions, excludes, among other categories, persons employed in managerial or executive positions. Managers and executives earning a basic monthly salary of s$2,500 and below are now given the same salary protection under the act. Further, part iV of the act, which prescribes minimum requirements regarding rest days, hours of work and overtime, public holidays, annual leave, sick leave, retrenchment benefits, retirement benefits, the annual wage supplement and other variable payments, applies only to workmen (generally, persons employed for manual labour) with a basic monthly salary of not more than s$4,500 and protected employees (not being workmen) with a basic monthly salary of not more than s$2,000. employment disputes in singapore may be resolved in the civil courts. a protected employee has the further option of lodging a claim in the Labour Court, which is presided over by assistant Labour Commissioners. Decisions are made in the form of orders, which may be enforced in the subordinate Courts, while appeals against decisions in the Labour Court may be made in the High Court. no legal representation is allowed in Labour Courts. Trade disputes involving trade unions may, after attempts at conciliation have failed, be resolved in industrial arbitration courts. singapores statutes on employment law may be grouped into four general categories. First, minimum employment standards are stipulated by the act (mentioned supra); secondly, there are rules ensuring the safety of workplaces and the right of
* D aniel Lim and Min-tze Lean are both directors at stamford Law Corporation.

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Singapore employees to compensation for injuries incurred during the course of employment;1 thirdly, requirements are laid down to regulate the entry and employment of foreign workers;2 and fourthly, legislation governing the collective bargaining process.3 rules and regulations promulgated under the relevant acts of parliament supplement and give detail to specific aspects of the main legislation. The Ministry of Manpower has general oversight over matters relating to the above. The Ministry of Manpower has a regulatory enforcement division to carry out inspections of workplaces and investigations of breaches of the various employment laws. The Ministry of Manpower may also launch inquiries upon receiving any claims or complaints from members of the public. II YEAR IN REVIEW

Historically, the singapore employment law regime has been very favourable to employers. However, the trend in recent years has been to enhance employee welfare and safety and the developments in the past year continue this trend. i Safety and health

The Workplace safety and Health act (WsH) was recently revised in 2008 and requires employers to take reasonably practicable measures to ensure a safe work environment, including putting in place safety measures and safe procedures for workplace activities. Coverage of regulated premises under the WsH is being gradually increased and, in due course, is intended to cover all work premises. in line with these stated intentions, three new regulations under the WsH were made in 2009. Firstly, the WsH (explosive powered Tools) regulations 2009 imposes duties on employers to ensure that users of such explosive powered tools adopt specified practices, including ensuring that such tools and their projectiles meet certain quality standards; that protective shields are used together with such tools; and the adoption of other safety measures relating to the use of such tools. Secondly, the WSH (Confined Spaces) Regulations 2009 imposes duties on occupiers of workplaces and other responsible persons to ensure safe practices with regards to confined spaces (defined as any confined space in which gases, vapours or fumes are liable to be present leading to certain identified risks). These practices include ensuring adequate ventilation for confined spaces and the control of entry into such spaces. Thirdly, the WsH (safety & Health Management system and auditing) regulations 2009 consolidates regulatory requirements on safety and health management systems in higher risk work environments, including construction and shipbuilding sites. The regulations require such occupiers to implement a safety and health management system. With respect to larger worksites and certain types of factories, there is an additional

1 2 3

T he Workplace Health and safety act and the Work injury Compensation act. T he employment of Foreign Manpower act the immigration act. T he Trade Unions act, the industrial relations act and the Trade Disputes act.

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Singapore requirement that at specified frequencies to conduct an internal review of the safety and health management system or to appoint a workplace safety and health auditor to conduct an audit. ii Retirement and older employees

The retirement age act prescribes a retirement age of 62. any term in an employment contract that excludes or limits the retirement age, or precludes an employee from availing himself or herself of the benefits conferred by the statute is void. Any dismissal of an employee below the retirement age on the ground of age is prohibited and attracts criminal penalties. in view of the growing number of older employees in the singapore workforce, measures are being considered by the authorities to encourage senior employees to continue working, for example by reducing the right of employers to reduce wages of employees who have reached the age of 60, and by extending the retirement age to 67 years. Under proposed legislation that is slated to take effect in 2012, employers will be required to give advance notice to upcoming retirees on whether re-hiring is available. Where it is not available, a one-off payment will be given to retirees to assist in looking for a new job. iii Global financial crisis and government assistance

as with many other countries, the government has introduced stimulus measures to boost singapores economy. one of the innovative measures implemented was the Jobs Credit scheme, where employers were granted cash payouts based on their Central provident Fund (CpF) contributions on behalf of their employees to encourage employers to retain their employees. another scheme was the skills programme for Upgrading and resilience developed by the singapore Workforce Development agency, which provided additional incentives (through funding support and subsidies) to retain workers by sending them for training and skills upgrading. This was intended to help companies save on employment costs, better manage their excess workforce during the downturn and at the same time upgrade their workers to strengthen business competitiveness for any eventual economic recovery. III SIGNIFICANT CASES

The Court of appeal case of Chandran al Subbiah v. Dockers Marine Pte Ltd [2009] sgCa 58 concerned a stevedore who was deployed by his employer to work on a vessel (ship) owned by a third party when a ladder detached and the stevedore fell, sustaining severe head injuries. The case is significant in the Courts examination of the scope of the common law and statutory duty imposed on employers to take reasonable steps to minimise the dangers faced by their employees, not only in workplaces within their control, but also in any place where their employees carry out their work. This case may be seen as part of a recent legislative and judicial trend towards establishing a safety first work culture imposing higher standards on employers in ensuring a safe work environment.

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Singapore The Court affirmed the common-law duty on employers to take reasonable measures to ensure the safety of its workers. The duty is imposed on an employer as soon as the employment relationship is established. The Court observed that changes in attitudes and the social climate towards ensuring adequate safety standards in the workplace should be taken into account when evaluating the employers duty of care in any particular situation. on the basis of the changes in attitudes and social climate observed, the Court proceeded to distinguish older Commonwealth case law that was presented before it. Consequently, undue reliance should not be placed on older Commonwealth case law when evaluating the scope of this duty. The Court described the common-law duty imposed on employers as being personal and non-delegable, and would continue to persist even if the employees in question were deployed or made to work in premises not belonging to the employers. The standard of care in relation to this duty imposed on employers is to be a common sense and practical standard framed by the boundaries of reasonableness. Significantly, the Court also stated that when determining the appropriate standard of care to be adopted, all relevant factors have to be taken into account. The Court then examined and considered the WsH and even relevant industry codes of conduct such as the Ministry of Manpowers Workplace safety and Health advisory Committees Compliance assistance Checklist (the WsHaC Checklist) even when these were not yet in force at the time of the injury. The Court held that the common law duty imposed on employers in this regard requires them not to expose their employees to unnecessary or avoidable risks at a workplace, and to take reasonable care in assessing the risks that might be present as well as take reasonable means to make the work safer for their employees. in connection with this, the Court held that all employers whose employees were involved in work that might give rise to safety concerns are generally expected to perform a risk assessment exercise including, where possible, a physical inspection of the workplace prior to the commencement of work by the employees. The Court expressed its desire that all stakeholders are to have conscientious and consistent regard to worker safety given the robust expression of the uncompromising legal requirements imposed on all employers. IV i BASICS OF ENTERING AN EMPLOYMENT RELATIONSHIP Employment relationship

The act does not apply to certain excluded employees, such as managers and executives. For persons excluded by the act, the applicable terms governing the employers obligations will be based on the common law and the employment contract. There is no requirement for employment contracts to be in writing. as contracts may be formed orally or even by implication under common law, it is recommended that employment contracts be in writing to avoid any uncertainty as to their existence and terms. Contracts may be amended or varied by the parties mutual consent provided that it is supported by consideration. accordingly, any attempt to vary a contract unilaterally and without consideration may be unenforceable and amount to a breach of contract.

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Singapore ii Probationary periods

The act does not make any reference to probationary periods. However, under the act employees who are employed for 26 weeks or less are entitled to only a minimum of one days notice, which in effect is similar to the right that employers usually reserve for themselves during probationary periods. iii Establishing a presence

a foreign company may not hire employees in singapore without being registered either as a branch office or a representative office. Foreign companies may recruit employees through an agency or other third party prior to their registration in singapore, but must be registered as a branch office or representative office before they can commence employment of the personnel. That said, a foreign company may send an employee from its home jurisdiction to carry out business in singapore on behalf of that entity. The employee may, however, be considered to be a permanent establishment of the foreign company for singapore income tax purposes, and thus render the foreign company liable to pay singapore income tax on income sourced in singapore. A foreign company that is not officially registered in Singapore may engage an independent contractor (e.g., a commission agent, broker or other independent intermediary) to act on its behalf in singapore. an independent contractor will not normally be considered to be a permanent establishment of the foreign company, particularly where there is evidence that the independent contractor carries on business in its own name and has an arms-length fee from the use of its services by the foreign company. in singapore, every employee who is singaporean or a permanent resident of singapore and earns a salary of s$50 a month or greater is required to make contributions to the CpF. The CpF is a provident fund managed by the government to meet the retirement needs and medical expenses of singaporeans and permanent residents. The rate of contribution is dependent on the monthly salary and age of the employee. The maximum rate of contribution is 34.5 per cent of an employees salary (where the employees monthly salary exceeds s$1,500 or s$18,000 per annum), subject to a maximum of s$1,552.50. There is no cap on the contribution amount in respect of additional wages (such as bonuses). of the 34.5 per cent maximum contribution rate, 20 per cent is to be contributed by the employee (subject to a maximum contribution of s$900) and 14.5 per cent is to be borne by the employee (subject to a maximum contribution of s$652.50). V RESTRICTIVE COVENANTS

Under singapore law, non-compete clauses are allowed if they are reasonable. reasonableness is determined by the court on a case-by-case basis. The clause is examined from the point of view of each of the parties and also from the public policy perspective of promoting free competition. From the employers perspective, the restriction must be personalised to the individual and be no more restrictive than is necessary to protect its interests. For example, if the concern is confidentiality, and there are already separate confidentiality protections, then additional non-compete provisions may be found to be unreasonable. From the employees perspective, the usual factors weighed are the

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Singapore duration, geographical scope and work-area of the restriction. Compensation for the restriction can be a factor in determining reasonableness. VI WAGES

The act prescribes the maximum number of working hours and the scale of overtime pay for employees protected under part iV of the act (part iV protected employees). There are no other working hour restrictions and overtime pay requirements imposed on employment contracts. i Working time

Hours of work employees protected by the act may not be required under their employment contracts to work more than eight hours a day or 44 hours in a week. The limit of eight hours per day may be exceeded when an employee is not required to work more than five days a week. However, he or she must not be required to work for more than nine hours per day or 44 hours in a week. if the number of hours worked is less than 44 hours every alternate week, the limit of 44 hours a week may be exceeded in the other week. This must, however, be stated in the employment contract and is subject to a maximum of 48 hours in one week or 88 hours in any continuous two-week period. a shift worker may work up to 12 hours a day at the ordinary wage, provided that the average working hours each week do not exceed 44 hours over a continuous threeweek period. an employee shall not be required to work more than six consecutive hours without a break unless the nature of work is such that it must be carried on continuously, in which case the employee may be required to work for eight hours continuously, though in such an instance a break or breaks of no less than 45 minutes in aggregate must be given so that the employee can have meals. an employee is entitled to a rest day comprising one whole day (midnight to midnight) every week. if the employees rest day falls on any day other than a sunday, the employer is required to prepare a monthly roster and inform the employee of his or her rest days for the month at the beginning of each month. ii Overtime

all work performed by an employee protected by the act in excess of the abovementioned hours of work is considered as overtime work, and the employee must be paid no less than 1.5 times his or her hourly basic rate of pay. payment for overtime work must be made within 14 days after the last day of the salary period. The employee may work up to 72 hours of overtime in a month. This limit, however, may be exceeded if the employer has applied for and the Ministry of Manpower has granted an exemption. VII FOREIGN WORKERS

employers are required to keep a register of foreign employees showing their name, address, the basic rate of pay and allowances, the amount earned, and the amount of deductions made from the earnings of each foreign employee. all legislation affecting

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Singapore local workers will apply equally to foreign workers. in addition, employers must ensure that foreign employees must be in possession of a valid work pass for the period of employment and take responsibility for certain matters. The granting of work passes is subject to conditions that may be imposed by the Controller of Work passes. i Work passes

Foreign workers may work in singapore under a variety of different passes, depending on their level of qualifications and skills. Foreigners with recognised qualifications and who earn more than s$2,500 a month may come in on an employment pass, while mid-level skilled workers may work in singapore on an s-pass if they have a degree or diploma level qualifications (such as technicians) and earn at least S$1,800 a month (for most cases). Qualification for the S-Pass is determined on a points-based system, with relevant factors such as work experience and job type being considered. Unskilled workers (such as construction workers) may work in singapore on a Work permit. ii Quotas

Quotas are imposed on the number of s-pass and Work permit holders that an employer may hire, depending on the sector of the employers business. For example, Work permit holders may form a greater proportion of the employers workforce of an employer in the construction sector than an employer in the services sector. iii Levy

The foreign worker levy is a pricing control mechanism to regulate the demand for foreign workers in singapore. a levy must be paid on each foreign worker coming in on a Work permit or s-pass. For s-pass workers, the levy is s$50 a month, while for Work permit workers, the levy ranges from between s$150 and s$470 a month per worker, depending on the sector and the percentage of the workforce constituting foreign workers. iv Security bond

all employers of Work permit holders who are not Malaysian nationals are required to furnish a s$5,000 security bond. There is no security bond requirement applicable for Work permit holders who are Malaysian nationals. From 1 January 2010, new conditions will be attached to the security bond, including having to pay foreign workers promptly and having to make reasonable efforts to locate absconded workers. v Medical

employers have to bear the costs of any medical examinations for Work permit and s-pass holders as required by the Controller of Work passes and other medical and hospitalisation expenses. From 1 January 2010, employers must provide medical insurance coverage for such workers of S$15,000 (the previous figure was S$5,000). vi Other

employers of Work permit holders also have to bear the costs in relation to the upkeep, maintenance and eventual repatriation of the foreign worker. all work pass holders (or

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Singapore in the case of Work permits, their employer) are required to provide updated residential addresses within five days of commencement of employment and subsequently any change in address. VIII GLOBAL POLICIES The employeremployee relationship is governed mainly by contract. Where employers intend for an employee handbook to govern employees conduct, care should be taken to ensure that the employment contract makes specific mention that the terms of the handbook are to form part of the terms of employment. in the Court of appeal case of Intergraph Systems South East Asia Pte Ltd v. Zhang Yiguang,4 it was held that the provisions of an employees handbook were not incorporated into an employees contract merely by placement of an employees handbook on the companys intranet. apart from the minimum statutory requirements laid down in the employment act, there are no mandatory rules that are implied into or that must be included in the employment contract. IX EMPLOYEE REPRESENTATION

employees may form trade unions to represent their collective interests under the Trade Unions act. Where a trade unions membership comprises employees who do not occupy managerial or executive positions, the trade union may not represent employees in managerial or executive positions (who may form their own separate trade union). all trade unions must be registered with the registrar of Trade Unions. if a trade unions registration is refused or cancelled, it immediately loses the rights, immunities and privileges granted to trade unions, and will be deemed to be an unlawful association. The registrar of Trade Unions may conduct inspections of the trade unions books, accounts, records and documents. i Rules of a trade union

The Trade Unions act requires certain matters to be provided for under the rules of each trade union. These include: a the objects for which the trade union is to be established, the purposes for which the funds shall be applicable, the conditions under which any member thereof may become entitled to any benefit, and the fines and forfeitures to be imposed on members; b the custody and investment of the funds of the trade union and the annual or periodic audit of its accounts; c the inspection of the books and names of members of the trade union by any person having an interest in the funds of the trade union; and d the taking of all decisions in respect of the election of officers, the amendment of rules, strikes, dissolution and any other matter affecting the members of the trade union generally, by secret ballot.

Intergraph Systems South East Asia Pte Ltd v. Zhang Yiguang[2005] 1 sLr 255.

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Singapore apart from the matters listed in the schedule appended to the Trade Unions act, the trade union is free to implement its own internal policies and procedures, so long as they keep within the legislative framework of the Trade Unions act and the industrial relations act. ii Rights and liabilities of a trade union

A trade union can sue and be sued in its own name. A trade union and its officers will also have immunity against certain legal proceedings instituted against them (e.g., for inducement of breach of contract) if the proceedings result from their actions taken in contemplation or furtherance of a trade dispute. a trade union also has immunity against tortious claims in general. ordinary contractual rules apply to contracts entered into by the trade union. iii Representatives of the trade union

Officers and other duly appointed representatives of a trade union have the right and the authority to bargain collectively for and to bind all the members of the trade union by a collective agreement without the need for ratification by the members. There are no statutory rules relating to the number of representatives that a trade union must have, their term of office or the frequency and procedure of a trade unions meetings. iv Strikes and industrial action

A trade union must not commence, promote, organise or finance any strike or any form of industrial action affecting the whole or any section of its members without obtaining the consent, by secret ballot, of the majority of the trade union members so affected. v Industrial Relations Act

The industrial relations act (the ira) governs the collective bargaining process, as well as the dispute resolution process for disputes between a trade union and an employer. Disputes between a trade union and the employer must not be resolved by conciliation or arbitration outside the framework of the ira. a trade union may serve notice on an employer, or vice versa under the ira, setting out proposals for a collective agreement in relation to any industrial matters and inviting the employer or trade union (as the case may be) to enter negotiations with a view to arriving at a collective agreement. if no reply is made by the recipient of the notice, the Commissioner for Labour and the Minister may intervene and persuade the parties to negotiate or even subject them to compulsory conferences. Where all attempts at conciliation have failed, the parties may then refer their case to the industrial arbitration courts. An award made by an industrial arbitration court is final and conclusive and is not open to appeal. notably, except for a minor strike in 1985, singapore has been strike-free since 1978.

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Singapore X i DATA PROTECTION Requirements for registration

There is no data protection law applicable generally in singapore, and as such, there is no data protection agency. nevertheless, the personal data of employees may be protected by the law of confidence. Accordingly, employee consent is prudent with respect to commercial use or disclosure to third parties of employee data, failing which the employer may be in breach of confidence. ii Sensitive data

In view of the protection afforded by the law of confidence, employers should treat all employee-identifiable data, including financial and medical information, as confidential. There are, however, no restrictions on the internal processing of such data. iii Background checks

There are no restrictions on conducting background checks in singapore. ex-convicts are issued with colour-coded identity cards and as such their status will be obvious to employers. XI i DISCONTINUING EMPLOYMENT Dismissal

The termination of contracts is usually effected by giving notice. Under the common law, in the absence of any express contractual term, a reasonable notice period will be implied. in respect of employees covered under the act, if the employment contract already sets out the relevant notice period to be given, that notice period will apply. otherwise, the following notice periods will apply:
Length of service Less than 26 weeks 26 weeks to less than 2 years 2 years to less than 5 years 5 years and above Notice period 1 day 1 week 2 weeks 4 weeks

Where there are disputes, the civil courts will have jurisdiction in deciding the outcome. ii Payment of salary in lieu of notice

Under the act and under the common law, after written notice has been given, either party may terminate the employment contract without waiting for the required notice period to expire by paying to the other party a sum equal to the amount of salary that would have been earned by the employee during the required period of notice. iii Summary dismissal Under common law, if the employee is guilty of misconduct, the employer is entitled to summarily dismiss the employee in question without notice. For an employee covered by the act, an employer may after due inquiry dismiss him or her on the grounds of

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Singapore misconduct inconsistent with or wilful breach of the express or implied conditions of his or her service. Where an employee covered under the act feels that he or she has been unjustly dismissed, the employee is entitled to make representations to the Minister, who may order an inquiry into the dismissal and reinstate the employee or pay the employee a compensatory sum. iv Female employees

Dismissal of a female employee who is on maternity leave without just cause is prohibited and constitutes a criminal offence. in the case of a pregnant employee who is not already on maternity leave, if a notice of termination or dismissal is given without sufficient cause within six months of the date of delivery, or retrenchment is made within three months of the date of delivery, the employee is entitled to maternity leave pay. v Mutual settlement

The parties are generally free to enter into a mutually agreeable settlement with respect to the termination of an employment. vi Retrenchment

Under part iV of the act, an employee who has been employed for at least three years can request retrenchment benefits from his or her employer if he or she is retrenched. The courts have held, however, that this should not be interpreted to mean that the employer is under a legal obligation to provide retrenchment benefits. A guideline released by the Ministry of Manpower on 19 november 2008 recommended a rate between half a month and one months wages as a retrenchment payment for each year of service of an employee. XII OUTLOOK

as the global economic situation begins to stabilise, the stimulus packages that have been implemented will be scaled back, and employers may find themselves deprived of some of the benefits they enjoy now, which may result in some retrenchment and reorganisation of the local workforce. We can, however, expect the implementation of other longerterm schemes to aid singapores economic recovery. apart from parliaments intention to extend the WsH to cover all work premises, employers can expect that the government will continue to encourage improvements to the workplace environment to attract higher quality talent to singapore. The government has stated that such enhancements will need to be balanced with the cost to and burden on businesses and will calibrate its measures accordingly. The needs of an ageing workforce continue to be a concern, and the singapore government is expected to manage this issue proactively, as it has historically done. another related area that the government is likely to focus on will be in the area of its sizeable foreign labour force. Foreign employees in singapore range from low-wage menial labour to technicians, professionals and heads of industry. a topical issue is balancing the need to keep singapore attractive to foreign talent with the need to meet the aspirations of its citizens.

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About the Authors Daniel lim Stamford Law Corporation Daniel Lim is an advocate and solicitor of the Supreme Court of Singapore and a registered patent agent. He is a member of the Examination Committee for the Singapore Patent Agents Qualifying Examination. He has served as vice chairman of the Intellectual Property Committee of the Inter-Pacific Bar Association from 2001 to 2006 and 2008 to date. Daniel is co-author of the LexisNexis Butterworths book Intellectual Property. He has been a guest lecturer on the topic of licensing for the graduate certificate in intellectual property law run by the IP Academy since 2001. He has also spoken widely at international conferences and local seminars. He has been listed as a leading lawyer practising in information technology and telecommunications consistently through the years in a diverse range of publications such as Asia-Pacific Legal 500, AsiaLaw Leading Lawyers, Practical Law Companys Which Lawyer?, Whos Who Legal and Global Counsel 3000. Daniel is an experienced litigator and the cases he has been involved in cover employment matters, trade secrets, trade libel, patents, trade marks, copyright and trust. The litigation experience is translated into practical advice and solutions in Daniels transactional and documentation practice. min-tze lean Stamford Law Corporation Min-tze Lean is a director in the employment law practice group of the Firm and has advised both local and international clients on a wide range of matters, from structuring employment terms for senior-level management to dealing with employment issues in the context of post-acquisition integrations and restructurings. Min-tze has acted in some of the largest and most complex merger and acquisition transactions in Singapore and South-East Asia and a number of these transactions have won legal awards. Min-tze is recognised for his technical legal knowledge and principled-approach to structuring solutions to complex legal issues. He has also spoken at various conferences organised by Euromoney and LexisNexis.

StamFORD laW CORPORatiOn 9 Raffles Place #32-00 Republic Plaza Singapore 048619 Tel: +65 6389 3000 Fax: +65 6389 3099 legal@stamfordlaw.com.sg www.stamfordlaw.com.sg

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