DLA Piper_APAC Employment Law Forecast 2022

APAC Employment Law Forecast 2022

CAOPAUCNETMRYPL/OCYITMYE/NPTRLAACWTICFOE RECAST 2022 Contents Overview��������������������������������������������������������������������������������������������������������������������������������������03 Acknowledgment�����������������������������������������������������������������������������������������������������������������������04 Australia���������������������������������������������������������������������������������������������������������������������������������������06 Cambodia�������������������������������������������������������������������������������������������������������������������������������������07 China���������������������������������������������������������������������������������������������������������������������������������������������08 Hong Kong����������������������������������������������������������������������������������������������������������������������������������09 India����������������������������������������������������������������������������������������������������������������������������������������������11 Indonesia�������������������������������������������������������������������������������������������������������������������������������������12 Japan���������������������������������������������������������������������������������������������������������������������������������������������13 Macao�������������������������������������������������������������������������������������������������������������������������������������������14 Malaysia����������������������������������������������������������������������������������������������������������������������������������������15 Myanmar��������������������������������������������������������������������������������������������������������������������������������������16 New Zealand�������������������������������������������������������������������������������������������������������������������������������17 Singapore�������������������������������������������������������������������������������������������������������������������������������������18 South Korea���������������������������������������������������������������������������������������������������������������������������������19 Taiwan�������������������������������������������������������������������������������������������������������������������������������������������20 Thailand����������������������������������������������������������������������������������������������������������������������������������������21 Vietnam����������������������������������������������������������������������������������������������������������������������������������������22 DLA Piper in Asia Pacific�����������������������������������������������������������������������������������������������������������23 2

DLAPIPER.COM Overview DLA Piper’s APAC Employment Team has prepared their annual employment law forecast featuring a summary of the major legislative changes and key developments in 2021 that impacted the region and which also explores significant trends expected to shape the landscape for employers in 2022. This special annual publication covers 16 jurisdictions in Asia Pacific including Australia, Cambodia, China, Hong Kong, India, Indonesia, Japan, Macao, Malaysia, Myanmar, New Zealand, Singapore, South Korea, Taiwan, Thailand and Vietnam. This publication does not contain any legal advice but instead is intended to be a general overview and discussion of the subjects dealt with. If you require employment-related advice, please contact the DLA Piper professionals listed in this publication. Helen Colquhoun Lawrence Carter Partner and Head of Partner Employment, Hong Kong Tokyo Hong Kong +81 3 4550 2811 +852 2103 0840 [email protected] [email protected] Nicholas Turner Laura Scampion Partner and Head of Partner Employment, Australia Auckland Sydney +64 9 916 3779 +61 2 9286 8522 [email protected] [email protected] Johnny Choi Komson Suntheeraporn Partner and Head of Partner Employment, China Bangkok Beijing +66 2 686 8557 +86 10 8520 0709 [email protected] [email protected] David Smail Of Counsel Singapore +65 6512 9564 [email protected] 3

APAC EMPLOYMENT LAW FORECAST 2022 Acknowledgment We would like to express our gratitude towards the following leading local law firms for making important contributions to this annual publication by sharing their insights in relation to the 2022 employment law forecast for their jurisdictions. • DFDL • Eiger Law • Kim & Chang • Makarim & Taira S. • Peter Ling & Van Geyzel • Rato, Ling, Lei & Cortés – Advogados e Notários | Lektou • Trilegal • VDB Loi • VNA Legal

DLAPIPER.COM 5

APAC EMPLOYMENT LAW FORECAST 2022 Australia Sexual harassment Casual employees The Sex Discrimination and Fair Work (Respect at A definition of a casual employee has been added to Work) Amendment Act 2021 (“Act”) has now been the Fair Work Act 2009 (Cth). This provides significant introduced and its impact will be felt through 2022. clarity for employers and, provided employers have The Act introduces the ability for employees to apply appropriate contracts of employment in place, for a ‘Stop Sexual Harassment Order’ in the Fair Work significantly reduces the risk that a casual employee Commission, similar to a Stop-Bullying Application. could later successfully claim that they are a permanent Related expansions are also likely to be seen in respect employee. Employers should also ensure that they of an employer’s work health and safety duties. are up to date with, and complying with, obligations These changes reflect ongoing impacts of the #metoo to offer certain casual employees conversion to movement in Australia and continuing focus on the permanent employment. experiences of sexual harassment, particularly by women, in the workplace. Superannuation COVID-19 The Federal Government recently passed a Bill to amend the Superannuation Guarantee (Administration) Following extended periods of lockdown, including the Act 1992 (Cth). From 1 July 2021 to 1 July 2025, world’s longest lockdown in Victoria, Australia is moving the superannuation guarantee will increase from 9.5% into a new phase of “living with COVID-19”. In 2021, to 12% in 0.5% increments over each year. This is the there were a number of challenges to the ability of first time the super guarantee has been increased employers to require employees to be vaccinated and since 2014. these are expected to significantly expand in 2022. In the absence of any state/territory mandates to Whistleblowing vaccinate employees, many employers are mandating vaccination for some or all of their workforce in reliance The Government has recently announced that it on their work health and safety obligations. The case proposes to strengthen whistleblowing legislation law to date indicates that it is critical employers not only including to strengthen support and protections for demonstrate that a mandate is reasonable but also that disclosers and bringing the public sector scheme in line consultation is carried out in compliance with industrial with the private sector regime. We also expect 2022 to instruments and work health and safety obligations. see increasing numbers of claims under the existing whistleblowing regime as employees become more aware of the protections it offers. 6

DLAPIPER.COM Cambodia Significant changes in the Minimum wage for 2022 labour law • Effective 1 January 2022, there is a new minimum The Law on Labour Law Amendment (effective on wage for 2022 for the garment, textile, footwear, 5 October 2021) amends certain articles of the labour travel products and bag sectors: law that was enacted on 13 March 1997 (“Labour Law”). Changes to note are as follows: • for regular workers, USD194 per month. • three work shifts (instead of the previous two) are • for workers during their probationary period, now allowed (i.e. a morning, an afternoon, and a night USD192 per month. shift) as long as the working hours of each shift do not exceed eight hours per day. • for workers who are paid on a piece-rate basis, if their productivity gives rise to an amount higher • work on paid public holidays is subject to the than the minimum wage, the higher amount supervision of labour inspectors. The formalities and applies instead of the minimum wage, if it gives procedure will be determined in a yet-to-be-issued rise to an amount lower than the minimum wage, Prakas of the Ministry of Labour and Vocational the minimum wage applies. Training (“MLVT”). Public holidays for 2022 • the Arbitration Council will now hear individual disputes as well as collective disputes. If a settlement • Announcement of 21 public holidays for 2022. is not reached after being brought to the labour inspector for conciliation, it can now be brought • Allowance for employers in certain industries and before the Arbitration Council. Prior to this, businesses that require work on a regular, non-stop the dispute had to be brought to court. basis to have workers work on public holidays, with the caveat that workers are given days off in • the labour inspectors are empowered as judicial lieu of the holiday on a rotating schedule. A list of police to inspect any infraction of the Labour Law the employees working on the rotating schedule for in accordance with the Code of Criminal Procedure. holidays must be maintained for regular inspection The formalities, procedure, powers, and authority of by the labour inspectors. the judicial police will be determined in an upcoming joint Prakas of the Ministry of Justice and the MLVT. • Allowance for employers to hire temporary workers to work on public holidays. Extension of 2022 foreign employee quota application deadline • Deadline extended from 30 November 2021 to 31 January 2022. • Possible fines for failure to apply by the extended deadline include KHR2.52 million (approximately USD630) by the MLVT or up to KHR3.6 million (approximately USD900) by the court. • Without this quota approval, employers cannot apply for their foreign employees’ work permits for 2022, which could result in heavier monetary fines and sanctions by the MLVT. 7

APAC EMPLOYMENT LAW FORECAST 2022 China Personal information insurance regime. It won’t cause too much impact on protection law the foreign employees’ salary as both the employer and the employee can still agree not to contribute The Personal Information Protection Law (“PIPL”) came housing fund. In addition, the tax-free fringe benefits into effect on 1 November 2021, setting out the first for foreigners, which was scheduled to be cancelled comprehensive legal regime regulating the protection on 1 January 2022, has been further extended to of personal information in China. Additional legal 31 December 2023. grounds for processing personal information in addition to the general “consent-based” approach are included Social insurance in the PIPL. The PIPL also sets stricter requirements on consent. “Separate consent” should be obtained under In 2021, more and more provinces and cities are starting certain circumstances and general consent or bundled to follow Beijing’s policy (implemented in 2020) of consent used previously would be insufficient for such prohibiting companies from paying social insurance for areas, especially when dealing with sensitive personal employees working in places outside of the employer’s information and cross-border transfer of personal registered place through third party staffing agencies. information. We anticipate that more detailed guidelines This stricter policy was formulated to require companies will come out to supplement the PIPL. to establish a local presence in places they conduct business in. Promotion of employment in new forms Three child policy and extended maternity leave On 16 July 2021, the Ministry of Human Resources and Social Security, the National Development and With the introduction of the three child policy and Reform Commission and the Ministry of Transport extended maternity leave policies adopted by certain promulgated a guiding opinion on protecting the labour regions such as Beijing, Shanghai and Zhejiang in late rights and interests of workers employed in new forms 2021, more and more local governments are expected who rely on internet platforms for employment (e.g. to grant additional maternity leave, paternity leave or deliverymen hailed online, drivers of vehicles hailed other types of childcare leave to female and/or male online, truck drivers and internet marketers), in order to employees in 2022. However, the extended maternity address the emergence of new employment challenges leave policies have not been welcomed by most female accompanied by the increase in the number of workers workers as expected as many women are concerned employed in such forms . about gender discrimination from employers as a result of such policies. Social insurance and tax implications on foreigners Other policy updates Prior to August 2021, employers and foreign employees The “996 schedule” or “big/small week” policy that has in Shanghai could agree not to enroll the foreign been adopted by many tech firms for years is starting employees into the local social insurance scheme. to be cancelled after the Supreme People’s Court But starting from August 2021, all foreign employees and Ministry of Human Resources and Social Security working in Shanghai will be subject to the social explicitly stated that such overworking culture is illegal.

DLAPIPER.COM Hong Kong Abolishment of the MPF offsetting mechanism • The government has been proposing for some years to abolish the ability for employers to offset statutory severance or statutory long service payments by the value of contributions they have made to an employee’s Mandatory Provident Fund or other occupational retirement scheme. In the Chief Executive’s 2021 policy address, the government confirmed that it has determined to implement the abolition and will aim to introduce the relevant bills into the Legislative Council in 2022. The government is expected to: • legislate for employers to set up Designated Savings Accounts under their own names to save up for meeting future statutory severance payment and statutory long service payment liabilities after the abolition. • provide a two-tier subsidy to share out employers’ expenses on statutory severance payment and statutory long service payment after the abolition for a period of 25 years. Statutory holiday increase • The number of statutory holidays under the Employment Ordinance will be increased from 12 days to 17 days by 2030, with 1 additional statutory holiday added in every 2 years. The 5 new statutory holidays are: • The Birthday of Buddha (starting from 1 January 2022) • The first weekday after Christmas Day (starting from 1 January 2024) • Easter Monday (starting from 1 January 2026) • Good Friday (starting from 1 January 2028) • The day following Good Friday (starting from 1 January 2030) Minimum wage • The statutory minimum wage rate (currently at HKD37.50) will be reviewed by the government in October/November 2022. Depending on the economic impact of COVID-19, it is possible the government may continue to announce a freeze at the current rate of HKD37.50 per hour. 9

APAC EMPLOYMENT LAW FORECAST 2022 10

DLAPIPER.COM India Implementation of the labour codes Indian government considers comprehensive framework on • The four labour codes i.e., Code on Wages, 2019, remote working laws Industrial Relations Code, 2020, Code on Social Security, 2020 (“SS Code”) and Occupational Health, • The government of India is considering bringing in a Safety and Working Conditions Code, 2020 (together comprehensive framework for governing permanent “Labour Codes”) that will subsume and consolidate work-from-home arrangements that are being 29 existing central labour laws, were originally considered by most corporates in India. The proposed expected to come into effect on 1 April 2021. framework is expected to fix employees’ work hours However, the implementation of the Labour Codes and provide for payment of additional expenses has been delayed on account of the pandemic and incurred in setting up a home office (such as the resultant delay by the state governments in electricity and internet usage). While no official framing the state rules under the Labour Codes. notification has been issued, it is expected that this framework will help address the challenge that • While there is no official announcement yet, it is employers are currently facing with varying State laws. expected that the central and state rules would be framed and finalised in the coming months and Public interest litigation (“PIL”) that the Labour Codes would be implemented in seeking social security benefits for 2022. This would require companies to relook at gig workers their policies and practices on computing various employment benefits. • The Supreme Court on 13 December 2021 issued notice to the government of India and a few app-based Challenge to the Haryana State aggregators (such as, Uber, Ola, Zomato and Swiggy) Employment of Local Candidates based on a PIL filed by a federation of trade unions Act, 2020 (“LC Act”) representing app-based transport and delivery workers. The PIL seeks to recognise “gig workers” and • On 6 November 2021, the state government of “platform workers” (understood as persons who work Haryana issued a notification that the LC Act would and earn outside the traditional employer-employee come into effect on 15 January 2022. relationship and utilise application-based platforms such as Uber, Ola, Zomato, etc. to provide services) • Once effective, the LC Act would be applicable to all as “unorganised workers” within the meaning of the private companies, societies, partnership firms, trusts, existing laws and to ensure their coverage under and any person employing 10 or more persons in the extant social security legislations in the country. Haryana and require employers to register employees Currently such workers are treated as independent receiving gross monthly salary of up to INR30,000 contractors and hence are not eligible for social on a designated government portal, within 3 months security benefits. from the date of its implementation. There is also a requirement to ensure reservation of 75% of the • Notably, the upcoming SS Code recognises the job posts below the prescribed salary threshold for concept of “gig workers” and “platform workers” and individuals who are domiciled in Haryana. This has been envisages beneficial welfare schemes to be framed challenged in the Punjab and Haryana High Court by an for them, however, the SS Code is yet to come into industrial representation body and the plea has sought effect. It will be interesting to see if the court extends to stay the implementation of the LC Act till its final employment benefits under the current law. decision by the court. However, unless there is a stay or an exemption, the reservation requirement will trigger in January 2022 for companies operating in Haryana. 11

APAC EMPLOYMENT LAW FORECAST 2022 Indonesia Manpower law implementing • Wages regulations • Sets out two types of minimum wage, the provincial On 2 February 2021, four government regulations were minimum wage and the regional/municipal minimum wage. The regional/municipal minimum respectively issued in relation to (i) the utilisation of foreign wage may be determined with certain conditions such that it may be higher than the provincial manpower, (ii) fixed term employment, outsourcing, minimum wage. working hours and rest times and termination, (iii) wages and (iv) the Job Loss Security Programme. Key points to note in respect of each of the four • The sectoral minimum wage will no longer government regulations are set out below: be recognised. • The utilisation of foreign manpower • The Job Loss Security Programme • Unlike the previous regulation, the employer can • Employers must register their employees with the now obtain the immigration permits of the foreign Job Loss Security Programme. manpower once the Foreign Manpower Utilisation Plan (Rencana Pengunaan Tenaga Kerja Asing – • The contribution is 0.46% of the monthly salary RPTKA) is ratified by the Manpower Office. (for which 0.22% is to be paid by the Indonesian Government and 0.24% is to be paid by • Fixed term employment, outsourcing, working the employers). hours and rest times and termination • The benefits of the programme include hard cash, • Provides more detailed reasons for termination. access to job market information and job training. • Provides for new calculation methods for severance Constitutional court ruling packages which vary depending on the grounds for termination (lower than the previous regulations). • Pursuant to a ruling by the Indonesian Constitutional Court handed down on 25 November 2021, the Job • Provides for a requirement that a notice of Creation Law will be deemed to be unconstitutional termination explaining the grounds for termination and not legally binding unless the formation of the and the employee’s entitlement must be delivered Job Creation Law is revised within 2 years of this ruling. at least 14 working days before the date of the As a result, all the laws which have been revoked termination of employment. If an employee is by the Job Creation Law will then re-enter into force terminated during his/her probationary period, (which practically means the old regulation will come the notification must be delivered at least 7 working into force). In the meantime, the Job Creation Law will days before the date of termination. remain in force. • The Constitutional Court has suspended all strategic actions/policies which have a broad impact, and prohibits the Government from issuing any new implementing regulations of the Job Creation Law. We believe, however, that all implementing regulations of the Job Creation Law which were issued before the Constitutional Court ruling will remain in force. 12

DLAPIPER.COM Japan Prohibition of power harassment Social insurance for part-time employees • From 1 April 2022, small and medium sized enterprises (SMEs) will need to implement measures to prevent • From 1 October 2022, companies with 101 or power harassment. It will be obligatory to create a more employees covered by social insurance will policy clearly stating that harassment is prohibited, be required to have social insurance for part-time to raise awareness among employees including employees who: managerial staff of the issue and to set out a policy in the work rules that strictly deals with employees • work more than 20 hours a week; who have engaged in power harassment. While many companies already prohibit power harassment and • earn a monthly wage of 88,000 yen or more; address the issue in their work rules, it would be prudent to review existing work rules for compliance. • are expected to be in employment for more than 2 months; and Childcare leave • are not students. • From 1 April 2022 all employers will be required to create an environment that fosters the ability to Empowering women in the take childcare leave. This means to take one of the workforce following measures: conducting training, establishing a consultation desk (i.e., designating an individual(s) • From 1 April 2022, companies with 101 or more responsible for handling individual inquiries from employees will be newly required to formulate, employees), collecting and providing cases related publish and file with the labour authority an action leave, and disseminating the policy on promoting the plan that enables women to play a more active role leave and other rights related to pregnancy, childbirth, in the company. Those companies are required to childcare, etc. The rules for these leaves are complicated complete them by 31 March 2022. and it may be necessary for the responsible individuals to undergo training to understand the systems. Age of majority • In addition, the revised Child Care Leave Act (“Act”) will • From 1 April 2022, the age of majority will change be enforced from 1 October 2022. Under the revised from 20 to 18. As the Labour Standards Act provides Act, it will be possible to take “childcare leave at birth” minors with the right to cancel a labour contract, for up to 4 weeks within 8 weeks after a spouse gives there may be some impact for employers. birth and to take childcare leave in installments. 13

APAC EMPLOYMENT LAW FORECAST 2022 Macao Macao is shifting from a situation of almost full Trade union law proposal employment to a situation of increasing unemployment (under consultation until as employers continue to struggle with decreases in 14 December 2021) gaming revenues (being the main source of revenue for Macao) aggravated by a zero-COVID-19 cases Macao • The Macao Trade Union Law will set out the objectives policy. It is therefore likely that we will see a significant and guiding principles of trade union associations, impact on employment for Macao in 2022. which should strive to protect labour rights and interests, considering the Principle of Freedom of Legal regime for immigration Association, the Principle of Equality among unionised control, stay, and residence permits workers, and the Principle of Legality of the activities pursued by trade union associations. • Entered into force on 15 November 2021 – rules specify the framework and establish a new regime • As it is understood that public and security functions for controlling migration and authorisations of stay of the state should not pursue union activities against and residency. it, restrictions to the freedom of union association for some sectors of activity were stipulated– specifically, • The Public Security Force (“PSP”) is the entity in the proposal addresses the case of public employees, charge with the decision to allow/not allow entry in including agents of public security forces. Macao, and may request advice from other entities, namely the Macao Labour Department and Macao Residency for Talents – new scheme Trade and Investment Promotion Institute. under consultation • Special authorisations to stay can be granted to • Recognising the shortage of manpower available in skilled and non-skilled workers and, in case of the Macao and in attempting to compete with neighbouring latter, also to their families. regions and countries, a new scheme for Residency for Talents has been introduced and is currently under • Non-resident workers are allowed to enter in Macao consultation. This scheme seeks to revise immigration with the purpose of performing an activity and policies in order to attract skilled manpower; will need a Special Permit to Enter as workers. • The new scheme aims to attract talents from Employment Agencies four specific areas: Big Health, Modern Finance, Operations Law High-end Technology and Culture and Sport. • The Employment Agencies Operations Law entered into • It is an ambitious proposal which introduces force on 15 March 2021. remote-working to Macao’s legal system and derogates certain responsibilities from the Macao • According to the new regime, the direct Trade and Investment Promotion Institute. hire of non-resident workers is hindered, and employment agencies will be the main recruiters of non-local manpower. • Limitations on what can be charged by employment agencies is also a new feature of this new regime. 14

DLAPIPER.COM Malaysia There are two significant pieces of legislation currently Employment discrimination tabled in Malaysia’s Parliament which will have a disputes significant effect for employment law in Malaysia: The Employment (Amendment) Bill 2021 and the • Malaysia notably lacks discrimination protection Anti-Sexual Harassment Bill 2021 (“Bill”). Further details for employees. The Employment (Amendment) Bill to note in respect of each Bill are set out below. gives the Director General the power to “inquire into and decide any dispute between an employee and Both Bills are only in their first reading as at December his employer in respect of any matter relating to 2021, and further readings have been postponed to discrimination in employment [and] make an order”. 2022. The Bills should be passed in the first half of 2022. Non-compliance by an employer with such an order would be an offence. Increase in maternity leave, Anti-sexual harrassment and further protection for pregnant employees • The Anti-Sexual Harassment Bill (i.e. the Anti-Sexual Harassment Act 2021, if passed) (“Act”) will be • Pursuant to the Employment (Amendment) Bill, the paid Malaysia’s first sexual harassment related legislation. maternity leave entitlement will be increased from the This is seen as a significant development, with the existing 60 days to 90 days. new Act being described as: “An Act to provide for a right of redress for any person who has • The Bill also introduces new provisions which will been sexually harassed, the establishment of the prohibit an employer from dismissing an employee Tribunal for Anti-Sexual Harassment, the promotion who “is pregnant or is suffering from an illness of awareness of sexual harassment, and to provide arising out of her pregnancy” except on the grounds for related matters.” of – (a) wilful breach of contract; (b) misconduct; or (c) business closure. • The Tribunal for Anti-Sexual Harassment provided for under the Act will have jurisdiction to hear and Paternity leave determine any complaint of sexual harassment. Tribunal hearings will be closed to the public, and no • The Employment (Amendment) Bill also introduces legal representation is allowed. statutory paternity leave for the first time in Malaysia, granting married male employees 3 days of paid • The Tribunal will have the power to make an order paternity leave. for a private or public apology, compensation or damages of up to RM250,000, and an order for a Flexible working arrangements party to attend a programme. Non-compliance with a Tribunal award is a criminal offence. • Under the Employment (Amendment) Bill, employees can submit a written application to their employer “for a flexible working arrangement to vary the hours of work, days of work or place of work”. Employers must then approve or refuse the application within 60 days, providing reasons for a refusal. 15

APAC EMPLOYMENT LAW FORECAST 2022 Myanmar We expect a draft Workmen Compensation Law 2018 • the employer must provide relevant documents and (“WCL 2018”) and a draft Foreign Worker Law to come records, if the authority requested; into force in the near future. The Foreign Worker Law is currently under the review of the Union Attorney • the employee must file a claim to the Committee for General Office. the compensation of work-related injuries/diseases and death and will have up to 12 months from the Workmen compensation date of recovery from his/her treatment to do so; and The draft WCL 2018 seeks to rectify the existing • the employee may file a claim to the Committee if Workmen Compensation Act 1923. the employer fails to provide medical treatment for work‑related injuries or diseases. The draft WCL 2018 requires the formation of the Township Committee on Workmen Compensation No employer liability in certain (“Committee”) and sets out rules relating to workmen circumstances compensation for work-related injuries or diseases which include the following: However, the employer will not be liable in respect of any injuries which do not result in death under the • the employer is obligated to provide the medical following circumstances: treatment for work-related injuries or diseases to the employee; • where the employee sustained the injury while under the influence of alcohol or restricted drugs; or • the employer is obligated to provide compensation • where the employee breached safety regulations to employees in accordance with the WCL 2018 and/or rules aimed at ensuring the employee’s safety (including for death due to work accidents, or disobedience to an order expressly given; or permanent total disability, permanent partial disability and temporary disability due to work-related injuries); • where the employee willfully removed or disregarded safety precautions. • the injured employee must be examined by a qualified doctor within three days once notified about the Penalties injury to the employer; The failure of an employer to provide compensation • the employer must notify the relevant township in accordance with the WCL 2018 will be punishable authority within 24 hours in the event of death of an with imprisonment for a term ranging between employee as a result of an occupational accident at 3 to 12 months and/or by fine ranging between the workplace; MMK500,000 to MMK3,000,000 (approximately USD280 to USD1,600). 16

DLAPIPER.COM New Zealand Holidays Act scheme gives the employer absolute discretion not to make payment even if agreed targets are • New public holiday – Matariki met, this may be a truly discretionary payment for the purposes of the Holidays Act 2003. This • From 2022, New Zealand will recognise an gives employers more flexibility and comfort in additional public holiday – Matariki. This will be structuring remuneration. However, this will be recognised on Friday 24 June in 2022, and will be a short-lived, as when the taskforce changes are statutory day off for employees. The calendar date made to the Holidays Act 2003 in late 2022/early for the holiday will shift each year to align with the 2023, all payments except reimbursements will Māori lunar calendar but will always be a Friday. need to be included in holiday pay calculations. • Taskforce recommendations to be turned into Fair pay agreements Amendment Bill • In May 2021 the Government announced that they • The Minister for Workplace Relations has would proceed with the Fair Pay Agreement system. announced that all 22 recommendations made Fair Pay Agreements are large-scale agreements by the Holidays Act Taskforce Report (issued in covering all employees and employers within a 2021) have been accepted by the Government. particular sector. They broadly operate to regulate and The incoming amendments are intended to simplify provide a compulsory “floor” for basic employment the current legislation. An amendment bill is standards including wages, overtime and leave. expected to be introduced in mid-2022. The concept is similar to Australia’s modern award system. The legislation is currently being prepared • Discretionary bonuses case overturned and is expected to go through Parliament in 2022. • Last year we reported on an Employment Court Whistleblowing ruling that a “discretionary bonus” linked to performance and/or KPIs is not to be deemed a • The Protected Disclosures (Protection of Whistleblowers) “discretionary payment” under the definition of Bill has completed its second reading and is expected gross earnings (contained in the Holidays Act 2003) to be passed in early 2022. The Bill clarifies the and must be included in holiday pay calculations. definition of serious wrongdoing and strengthens In October 2021, this decision was overturned by protections for disclosers. the Court of Appeal, which held that where a bonus 17

APAC EMPLOYMENT LAW FORECAST 2022 Singapore COVID-19 Discrimination • Employment law developments in 2021 were • In 2021, there was an increased focus on dominated by a number of advisories and guidelines protecting local workers and preventing workplace issued by the Multi-Ministry Task Force and the discrimination. In his National Day Rally speech, tripartite partners (Ministry of Manpower, Singapore the Prime Minister announced that the Government National Employers Federation and National Trade will enshrine into law some or all of the principles Unions Congress) in response to the changing currently contained in the Tripartite Guidelines on COVID-19 situation, as well as updates to the Fair Employment Practices, and a new workplace Requirements for Safe Management Measures. discrimination tribunal will be established to resolve Despite a brief easing of workplace measures in the disputes. A draft bill is expected to be published by summer, work from home was largely the default the first half of 2022. With the introduction of new position for employees who were able to do so for legislation, employees in Singapore will for the first most of 2021. With effect from 1 January 2022, up to time likely be able to take legal action directly against 50% of employees who can work from home will be their employers for discrimination that takes place in allowed to return to the workplace, and we do expect the workplace. to see a continued phased return to the workplace during the remainder of 2022. Retirement age • From 15 January 2022, a set of updated Workforce • In 2021, the Retirement and Re-Employment Vaccination Measures will take effect such that only (Amendment) Bill 2021 and the CPF (Amendment) employees who are fully vaccinated, certified to be Bill 2021 were passed. As a result, the retirement medically ineligible or have recovered from COVID-19 and re-employment age will be raised to 63 and within the past 180 days may return to the workplace. 68 respectively from 1 July 2022 onwards, with an Partially vaccinated employees will still be allowed aim to raise them to 65 and 70 respectively by at workplaces with a negative Pre-Event Test result 2030. The purpose of the bills are to support older up to 31 January 2022, after which they must be Singaporeans who wish to continue working to do fully vaccinated. so and to better prepare them for retirement. • For unvaccinated employees whose work can be Employment Pass and S Pass performed at home, employers may allow them to eligibility criteria continue doing so. Otherwise, employers can either redeploy them to suitable jobs which can be carried • The eligibility criteria for Employment Pass and out from home if such jobs are available, place S Pass applications are likely to be tightened during them on no-pay leave or (as a last resort) move to 2022, which will likely mean a further increase to the termination in accordance with the employment applicable salary thresholds. Any new salary thresholds contract. Special consideration will be given for are likely to impact both new applicants and existing medically ineligible and pregnant employees. employees who need to apply for renewal. • Also, from 1 February 2022, full COVID-19 vaccination will be a condition for approval for any renewal or grant of new long-term pass, work pass and permanent residence applications.

DLAPIPER.COM South Korea Serious Accident Prevention Act sexual harassment, or takes disadvantageous (“SAPA”) measures such as dismissal against the victim who reported the sexual harassment, the victim can seek • The SAPA is to come into effect on 22 January 2022 for remedy at the Labour Relations Commission for businesses with 50 or more employees. corrective measures to be imposed. • The SAPA seeks to secure the safety and health of • This change opens up the possibility of the Labour workers in the workplace or the general public by Relations Commission issuing corrective orders to the holding the top decision maker of the business employer (which may include ordering the employer to accountable for “serious accidents”. cease such discriminatory acts or amend its working terms and conditions under the rules of employment • The responsibilities of employers and responsible or collective bargaining agreement and awarding management personnel under the SAPA include appropriate compensation (up to 3 times the amount establishing a safety and health management system of damages). Noncompliance with a confirmed covering manpower and budget issues, implementing corrective order without justifiable grounds may result the necessary plan to prevent recurrence of serious in an administrative fine of up to KRW100 million. accidents and taking necessary measures to ensure compliance with relevant safety and health related laws. Substitute holidays expanded Support system for employees returning to work from • With the enactment of the Public Holidays Act, industrial accident from January 2022, employers must grant the next business day as a substitute holiday in case certain • From 1 January 2022, the Korea Workers’ national holidays (Independence Movement Day (1 March), Independence Day (15 August), National Compensation and Welfare Service can request the Foundation Day (3 October) and Hangul Proclamation Day (9 October) or Children’s Day (5 May) fall on a employer to set up a support system for industrial Saturday or a Sunday. The substitute holidays must be treated as paid holidays. accident victims returning to work. This support system will be available to employees that require long-term medical care after an industrial accident or those that expect disability after medical care. • However, substitute holidays will not be granted for 2022 minimum hourly wage New Year’s Day (1 January), Buddha’s Birthday (8 April in the lunar calendar), Memorial Day (6 June) and • The minimum hourly wage in 2022 is KRW9,160, Christmas (25 December) even if such public holidays which is a 5.05% increase compared to the 2021 fall on Saturday or Sunday. minimum hourly wage of KRW8,720. Employee relief for gender • Regular bonus exceeding 10% of the 2022 minimum discrimination and sexual hourly wage calculated on a monthly basis harassment (KRW1,914,440 based on 209 hours in a month) will be included in the calculation of minimum wage. • From 19 May 2022, if an employer engages in sexual Cash welfare benefits in excess of 2% of such monthly discrimination in recruitment, hiring, wage, education, minimum wage will be included in the calculation promotion, retirement age or retirement or fails to of minimum wage as well. The scope of items to be take appropriate measures regarding the victim of included in the calculation of minimum wage will continue to be expanded through 2024. 19

APAC EMPLOYMENT LAW FORECAST 2022 Taiwan Work from home Foreign migrant workers • Work from home and its requirements remain crucial • The difficulties faced in bringing in new foreign as the pandemic continues to persist, and despite migrant workers has altered the supply/demand having returned (mostly) to normal after Taiwan’s first dynamic of workers in Taiwan significantly. Employers major COVID-19 outbreak over the 2021 summer, (normally factory owners) with workers typically from there are expectations that the fast-spreading the Philippines, Indonesia, Thailand, etc. are likely to omicron variant may lead to new problems. face greater unrest or resistance regarding situations that had been previously tolerated. For example, poor Implementation of vaccine dormitory living conditions become a bigger problem requirements for workers if they are asked as part of COVID-19 prevention measures not to leave their dormitories. • Implementation of vaccine requirements on existing employees or new hires has become a new topic • We are seeing workers also examining the public of discussion as the Taiwan government gradually commitments of foreign companies which have been expands the industries required to have vaccinated published online to see if there are any who follow employees or employees subject to constant testing. codes of conduct that expressly require no collection After getting off to a slow start because of delays of recruitment fees from workers (a common practice in receiving doses, Taiwan has rapidly increased its by agents working in their home countries). vaccinations island-wide and is now moving towards booster shots. There is therefore a growing societal expectation that employees will be vaccinated. While Taiwan vaccinations have moved ahead swiftly for younger workers and employees, the vaccinations among the elderly have lagged. Workplace safety for night-shift workers • Workplace safety for night-shift workers is currently under the spotlight because of several incidents in which convenience store workers were beaten or stabbed to death for warning customers to wear masks. Generally, resistance to protective measures has not been at the same level as in the United States and Europe, but Taiwan has seen an increase in such incidents. 20

DLAPIPER.COM Thailand There has been no significant and material development of the labour laws of Thailand during the year of 2021, except for: Social Security Fund and Workmen Compensation Fund • Certain updates related to the reduction of contribution rates to the Thai Social Security Fund and Workmen Compensation Fund. The purpose is to assist business operators and employees affected by the continuing COVID-19 pandemic. In turn, the amount of social security contribution that the employee could calculate for deducting the personal income tax will be lower possibly resulting in less tax returns. Welfare committee • Further, due to the increase in work-from-home arrangements, the election for the employee welfare committee as required by Thai Labour Protection Act B.E. 2541 (as amended) may be done via electronic means. 21

APAC EMPLOYMENT LAW FORECAST 2022 Vietnam The new Labour Code came into effect on 1 January 2021. However, Decree 145 adds and clarifies that where a Decree 145/2020/ND-CP dated 14 December 2020 female employee does not wish to take these breaks (“Decree 145”) came into effect from 1 February 2021 and the employer agrees for her to continue working, and clarified various matters on working conditions and then the employee must be paid additional salary labour relations under the new Labour Code. Key points according to the work that the employee has carried under the new Labour Code and Decree 145 include out during the time of break. the following: • An employer employing one thousand or more female Termination of labour contracts employees must install rooms for extraction and storage of breast milk at the workplace. This is a new • The new Labour Code has revised certain provisions on regulation pursuant to Decree 145. responsibilities upon termination of labour contracts, including: (i) Increasing the duration for each party to Sexual harassment make full payment of monetary amounts relevant to the interests of the other party from 7 working days • Pursuant to the new Labour Code, sexual harassment to 14 working days from the termination date; and in the workplace is an additional ground for dismissal (ii) adding a responsibility on employers to provide and is also an additional item that must be included in copies of documents relevant to the process of the the employer’s internal labour rules. employee’s job if the employee so requests and to pay the costs of copying and sending such documents. • Decree 145 clarifies situations that can constitute sexual harassment and regulates the employers’ • The new Labour Code and Decree 145 now require responsibility for preventing sexual harassment in a longer period of advance notice (which varies the workplace. The workplace has been defined to depending on the type of labour contract) for unilateral include any place where the employee actually works terminations of a labour contract (whether by the as agreed with or assigned by the employer, including employee or the employer) for certain industries work-related places or spaces such as social activities, and trades and special jobs (including for enterprise seminars, training, or official business trips, meals, managers as prescribed in the Law on Enterprises). phone conversations, electronic communication activities etc. Female employee accommodations • When there is a complaint or denunciation of sexual • Similar to the old Labour Code, the new Labour harassment in the workplace, the employer must Code stipulates that a female employee is entitled promptly take measures to protect the confidentiality, during her menstruation to a fully-paid break of honour, reputation, dignity and safety for victims of 30 minutes every day (for at least three working days sexual harassment, people making complaints and in a month), and during the period of nursing a child denunciations and the people the subject of the under 12 months is entitled to a fully-paid break of complaints or denunciations. 60 minutes every day during her working hours. 22

DLAPIPER.COM DLA Piper in Asia Pacific Beijing Seoul Shanghai Tokyo Brisbane Hong Kong Perth Bangkok Singapore Sydney Auckland Melbourne Wellington About DLA Piper’s GLOBAL EMPLOYMENT GUIDES Employment Group Our Global Employment Guides cover a significant number of jurisdictions across Europe, the Americas, DLA Piper’s Employment Group is a market-leading Asia-Pacific and Africa. These guides highlight the key global practice with a strong reputation for delivering legal provisions and provide practical guidance giving solutions-based advice and supporting clients in the clients instant access to the information they need to day-to-day management of their people. It includes over assist them to understand, plan and implement their 300 specialist lawyers globally, advising on a strategic global strategy in these areas. and operational level, on both contentious and non- contentious matters across the public and private sectors. • Guide to Going Global – Employment We also regularly provide valuable guidance and insight • Business transfers on issues concerning employment law and practice in different regions. • Restrictive covenants GENIE • Redundancies and reductions in force Global Employment News, Insights and Events is a • Global Whistleblowing guide subscription only global employment law resource for Please visit our Employment portal: our client’s global employment group. Designed to help https://www.dlapiper.com/en/employment/ understand the employment and labour law essentials when entering into or operating in new jurisdictions, For more information please email your usual contact GENIE allows subscribers to review and compare laws at DLA Piper or [email protected] across countries and keep up-to-date with key HR legal developments around the world. Please sign up for GENIE: http://geniesubscriptions.dlapiper.com/register.htm 23

DLA Piper is a global law firm operating through various separate and distinct legal entities. Further details of these entities can be found at dlapiper.com. This publication is intended as a general overview and discussion of the subjects dealt with, and does not create a lawyer-client relationship. It is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. DLA Piper will accept no responsibility for any actions taken or not taken on the basis of this publication. This may qualify as “Lawyer Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome. Copyright © 2022 DLA Piper. All rights reserved. | 19 Jan 2022 | A12397-9