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Employment & Labour EEmploymentmployment & LabourLabour LLawaw 2018 Sixth Edition Contributing Editors: Charles Wynn-Evans & Emma Byford GLOBAL LEGAL INSIGHTS – EMPLOYMENT & LABOUR LAW 2018, SIXTH EDITION Contributing Editors Charles Wynn-Evans and Emma Byford, Dechert LLP Production Editor Andrew Schofi eld Senior Editors Suzie Levy Caroline Collingwood Group Consulting Editor Alan Falach Publisher Rory Smith We are extremely grateful for all contributions to this edition. Special thanks are reserved for Charles Wynn-Evans and Emma Byford for all their assistance. Published by Global Legal Group Ltd. 59 Tanner Street, London SE1 3PL, United Kingdom Tel: +44 207 367 0720 / URL: www.glgroup.co.uk Copyright © 2017 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-911367-87-1 ISSN 2050-2117 This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualifi ed professional when dealing with specifi c situations. The information contained herein is accurate as of the date of publication. Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY December 2017 CONTENTS Preface Charles Wynn-Evans and Emma Byford, Dechert LLP Angola Sandra Lima da Silveira & Inês Nobre, Cuatrecasas 1 Armenia Sedrak Asatryan, Janna Simonyan & Ani Varderesyan, Concern Dialog law fi rm 8 Australia Leon Levine, Dan Williams & Gordon Williams, MinterEllison 12 Austria Hans Georg Laimer & Lukas Wieser, zeiler.partners Rechtsanwälte GmbH 23 Brazil Luis Antonio Ferraz Mendes, Mauricio Froes Guidi & Adolpho Julio C. de Carvalho, Pinheiro Neto Advogados 33 Bulgaria Radoslav Alexandrov, Boyanov & Co. 39 China Jiang Junlu & Zhang Hongyuan, King & Wood Mallesons 50 Finland Jani Syrjänen, Borenius Attorneys Ltd 58 France Lionel Paraire & Anaëlle Donnette-Boissiere, Galion Avocats 68 Germany Dr. Holger Meyer & Sophie Kuske, SCHRAMM MEYER KUHNKE 79 Hungary Dr. Ildikó Rátkai & Dr. Nóra Feith, Rátkai Ügyvédi Iroda 88 India Suhas Srinivasiah & Debjani Aich, Kochhar & Co. 94 Ireland Mary Brassil, Stephen Holst & Mary Kelleher, McCann FitzGerald 104 Italy Vittorio De Luca, Roberta Padula & Claudia Cerbone, De Luca & Partners 116 Japan Daisuke Mure & Ryotaro Yamamoto, Oh-Ebashi LPC & Partners 122 Korea Sean Hayes, S.J. Kook & Jeongha Lee, SJ Law Firm Int’l Practice Group (IPG Legal) 131 Malta Dr. M. Clara Galea Borg & Dr. Kristina Pavia, EMD Advocates 143 Netherlands Nils T.A. Zeeuwen, Ivo R. Boudrie & Maarten H. Stekelenburg, DingemansVanderKind 152 Oman Omar Al Hashmi & Syed Ahmad Faizy, Al Hashmi Law 163 Pakistan Aemen Zulfi kar Maluka & Pir Abdul Wahid, Josh and Mak International 174 Portugal Sandra Lima da Silveira, Cuatrecasas 183 Spain Enrique Ceca, Marta Montes & Sonia Manrique, Ceca Magán Abogados 191 Sweden Carl-Fredrik Hedenström, Karolin Eklund & Mary Ohrling, Magnusson Advokatbyrå 198 Switzerland Vincent Carron & Anne Roux-Fouillet, Schellenberg Wittmer Ltd. 206 Taiwan Paul Chu & Jill Hsu, Guo Ju Law Firm 216 Thailand Saroj Jongsaritwang & Sui Lin Teoh, R&T Asia (Thailand) Limited 226 Turkey Haşmet Ozan Güner, Dilara Doğan Güz & Murat Caner Çelebi, GUNER | legal 239 United Kingdom Charles Wynn-Evans, Emma Byford & Emma Zarb, Dechert LLP 251 USA Ned H. Bassen, Margot L. Warhit & Nathan W. Cole, Hughes Hubbard & Reed LLP 262 PREFACE e are delighted to have been asked to act as Contributing Editors to Global Legal Insights – Employment & Labour WLaw , and very pleased that this book is now into its sixth edition, which addresses developments in labour and employment law across 29 countries worldwide. As can be seen from the variety and detail contained in this book, labour and employment law issues never stand still and businesses operating internationally need to maintain their awareness of trends and impending changes in employment law regimes in the jurisdictions in which they operate. The objective of this book is to provide general counsel, human resource practitioners, lawyers, advisers and managers with an overview of developments in employment and labour law in a variety of jurisdictions across the world. The authors were asked to provide their perspectives on those current and forthcoming changes to the labour and employment law regime in their respective jurisdictions which they considered to be particularly important in practice. We are very grateful to all the authors for their contributions and hope that this book provides a useful and interesting snapshot of the important current employment law issues in the jurisdictions which it covers. Charles Wynn-Evans and Emma Byford Dechert LLP Angola Sandra Lima da Silveira & Inês Nobre Cuatrecasas Introduction The new General Labour Law (LGT), approved by Law No. 7/15, of 15 June, introduced some changes to Angola’s employment regime that resulted from the previous Law (Law No. 2/00, of 11 February), to respond to the necessities that resulted from the country’s economic evolution since the beginning of the century. Its publication had an evident material impact on the labour market, and the Government approved some complementary measures aimed at regulating in greater detail some situations that had not been properly considered in the LGT, and at creating or developing the conditions for certain, more innovative solutions set in the new Law to become fully operative. In this study, we aim to discuss some of the said innovations (regardless of whether they were already contemplated in the text of the LGT or were introduced by later legislation) which, by their nature or scope, seem to us to be especially relevant. General labour market and litigation trends New rules for the hiring of workers for a fi xed time The LGT changed the labour paradigm by moving away from the general rule of contracting for an indefi nite period and allowing the employer and the employee to enter into fi xed- term employment contracts, setting the maximum duration thereof at fi ve years, for large companies, or 10 years for medium-sized, small and micro-companies. More recently, Presidential Decree No. 40/17, of 6 March, established the minimum mandatory content for each type of employment contract (for a fi xed term and for an indefi nite period). Reinforcement of the obligation to seek mediation in litigation The labour markets in Angola present a tendency for litigation, with labour disputes becoming ever-more complex due to the increasing dynamism of economic activity and social development. Within this framework, the use of conciliation procedures has gradually acquired growing importance as a method to avoid judicial litigation. In this sense, the LGT determines that a judicial labour confl ict must be preceded by the use of an extrajudicial means of confl ict resolution. The LGT introduced mediation – to be conducted by the Inspecção Geral do Trabalho (IGT) (the General Inspectorate of Labour) – and arbitration as extrajudicial mechanisms for the resolution of labour confl icts, while maintaining conciliation – which falls within the responsibility of the Ministério Público (Public Prosecutor) acting ex offi cio before the presentation of the fi le to the judge – which was already provided for in previous legislation. GLI - Employment & Labour Law 2018, Sixth Edition 1 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Cuatrecasas Angola Should conciliation between the parties by the IGT fail to resolve the confl ict, the party requesting mediation may freely resort to judicial proceedings. In conciliation, in the event that the desired agreement between the parties is not reached, it is incumbent on the Ministério Público to forward the fi le to the court. Temporary use of manpower As a way to promote employment and contribute to the creation of conditions that encourage companies not to resort to redundancy, but only as a last resort, the Government has approved some measures aimed at allowing the use of manpower outside the more traditional schemes of exclusive attachment to a position in the employer’s organisation. The LGT refers in Article 21 (j) to the Temporary Work Contract. Temporary Work is characterised by the existence of an employment relationship involving the temporary worker, the temporary employment agency and the company employing the temporary worker. The Worker is hired by a temporary work company, in order to temporarily exercise his professional activity with a third party, the user company. This type of arrangement is truly on the rise because it allows companies to meet exceptional manpower needs, usually implying the use of highly qualifi ed and specialised professionals, without having to admit them as permanent workers, to positions in their organisation. The legal regime governing the temporary transfer of workers, as well as the activities of temporary employment agencies and their contractual relations with workers and users, is regulated by Presidential Decree No. 31/17, of 22 February. Redundancies, business transfers and reorganisations Employment agreement assignment In contrast with what is described above in respect of the temporary use of manpower, there is nothing to prevent the employer from assigning his position in the employment contract to another company, whereby the
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