Sexual harassment no longer a crime in France

This decision of the French Constitutional Court, dated 4 May 2012, came as a bombshell, as it effectively removed the prohibition on sexual harassment from the French criminal code. This decision and more importantly its consequences were clearly unexpected as the decision leaves a legal vacuum in the criminal code, given its immediate effect.

The French Constitutional Court based its decision on the grounds that the provision of the French criminal code prohibiting sexual harassment was not clear nor precise enough. Over the years, the definition of sexual harassment included in the French criminal code has been significantly widened to prohibit increasing types of behaviour, rendering these provisions too vague.  In the end, sexual harassment was merely defined as the act of harassing someone in order to obtain benefits of a sexual nature.

The main consequence of this decision is that as from the date of publication of the decision, no one can be convicted or punished on the ground of sexual harassment, as the offence no longer exists, and alleged offenders will be systematically discharged.

It should be noted that a specific provision of the French employment code also prohibits sexual harassment. Such offence under the French employment code is punished by a fine of up to €15,000, and by up to one year of imprisonment. This provision is not affected by the decision of the French Constitutional Court, but most HR specialists anticipate that the Constitutional Court would rule in a similar way if the question of its constitutionality was raised before it.

It is to be hoped that the new French legislature will quickly address this issue by an amendment to the statutory framework, as legislative bodies have recently been invited to do so by the head of the main HR directors union in France. On a related note, it would seem that the prohibition of moral harassment has also been challenged by a French court which is considering transmitting this issue to the Constitutional Court.

Should unions be regulated like corporations?

The issue of trade union governance became the leading news story in the Australian media last week, with the release of Fair Work Australia’s (FWA) report into the National Office of the Health Services Union (the Report).

The Report was undertaken by FWA under the Fair Work (Registered Organisations) Act 2009 (RO Act), and was released on May 7, 2012.

In summary, the Report found that various union officials, including former national secretary Craig Thomson, committed 181 breaches of union rules and the RO Act, which includes 105 contraventions of civil penalty provisions.  FWA has issued a statement advising that it intends to initial civil proceedings to pursue these alleged contraventions in the Federal Court.

The alleged civil contraventions of the RO Act include the provisions for an officer of an organisation to act with care and diligence, good faith and not to use his or her position to gain an advantage (sections 285-287). 

These provisions mirror the obligations for officers under sections 180-182 of the Corporations Act 2001 (Corps Act), however the penalty regime is starkly different – a maximum penalty of $2,200 for officers under the RO Act, compared with up to $200,000 for a similar contravention under the Corps Act.  Further, unlike the Corps Act, the RO Act does not provide for criminal liability for the above obligations.

An important question for debate is whether there should be greater consistency between the regulation of unions (and employer associations) and corporations - are the responsibilities for union officers to their members analogous to those for company directors to their shareholders?  After the release of the Report the answer appears to be yes, as the Federal Government has announced its intention to amend the RO Act to create consistency with the Corps Act regime.

However, this consistency may be qualified, if criminal liability is not part of any proposed amendments to the RO Act.  According to its 2010/2011 Annual Report, the Australia Securities and Investment Commission (ASIC), pursues almost as many criminal prosecutions as civil proceedings under the Corps Act.  Given this, if consistent regulation is considered necessary, it is unclear how this would be achieved by only increasing the financial penalties for contraventions of the RO Act.

The Government intends to canvas its proposed amendments on May 25 2012 at the National Workplace Relations Consultative Council meeting.

Dismiss or be dismissed! An illegal order in South Africa

In the recent case of Harding v Petzetakis Africa (Pty) Ltd (2011) 20 LC 8.29.3, it was held that an employee’s dismissal was automatically unfair when she was dismissed for refusing to carry out her employer’s instruction to dismiss two employees.

The dispute arose when the Chairperson and CEO of the company instructed the applicant, who was the managing director, to summarily dismiss two employees. She did not comply with the instruction because she believed she would be contravening the Labour Relations Act 66 of 1995 (‘the LRA’). She had tried to express her concerns that the dismissals would be unlawful to the CEO, but he refused to entertain her apprehension.

The applicant ignored her superior’s instruction and refused to dismiss the employees. She was subsequently dismissed and offered a severance package. She believed that the employer acted contrary to s5(2)(c)(iv) of the LRA, which prohibits an employer from dismissing an employee for their ‘past, present or anticipated…failure or refusal to do something that an employer may not lawfully permit or require an employee to do’. She thus claimed that she had been automatically unfairly dismissed in terms of s187 of the LRA.

The employer did not give a reason for her dismissal in the termination letter and it was only in the pre-trial minute that the employer revealed the justification for her dismissal, which was that her services had been terminated due to ‘poor-performance and/or misconduct’. During the trial, the applicant was the only witness and the employer did not lead any evidence about her alleged incapacity or misconduct. Instead the employer attempted to extract evidence of her misconduct or incapacity through cross-examination.

The court found that her dismissal was automatically unfair because the applicant had proven her prima facie case that she had been dismissed for a failure to summarily dismiss the employees.

The relevance of this case lies in the fact that once the employee proves that there was an unfair dismissal, the evidentiary burden shifts to the employer to prove that the dismissal was not for an automatically unfair reason.

If the employer does not discharge the evidentiary burden, then the Court will accept the applicant’s version. This case is a lesson to all employers to ensure that instructions given to employees are lawful. It is also an example of what may happen when the employer does not attempt to meet the case presented by the employee.

Illness and holiday compensation in Germany

After a decision of the European Court of Justice in 2009, employees were able to claim for compensation for holidays they could not take due to illness without limitation in time, even if the national law did not provide for such unlimited compensation. However, in a more recent decision on this issue the European Court of Justice considered provisions in collective bargaining agreements to be valid, which rule that the holiday entitlement shall be forfeited after an extension period of 15 months.

As the entitlement to paid holidays is a fundamental principle of social law in Europe, the court had initially decided that provisions regarding the expiration of holiday entitlement are only valid, if the employee is able to actually take the holiday, even he was ill for years.

However the court now decided that the unlimited accumulation of holiday does not comply with the purpose of the holiday entitlement. The holiday entitlement serves two purposes: recreation from work and providing for a period for relaxation and leisure time. These purposes cannot be fulfilled, if the holiday is transferred over a long period of time. Therefore the court considered the provision, which prohibits the employee from accumulating holidays over a period of 15 months after the time in which the employee should have taken the holidays to be valid, if agreed in a collective bargaining agreement.

Note: Though we must wait for a court decision about such provisions in employment contracts itself (instead of in collective bargaining agreements), it is advisable to include a provision that holiday entitlements forfeit after 15 months after the end of the holiday year in German standard employment contracts.

Two Dollars and Seventy Cents to Close the Pay Gap?: Report Finds Difference in Hourly Earnings Between Men and Women Was Lesser in 2011 Than in 2001

On April 26, 2012, the Institut de la statistique du Québec (ISQ) released the 2012 edition of the Annuaire québécois des statistiques du travail. According to the report, Québec women came 29 cents closer to earning the same average salary as men in 2011. The average hourly wage in 2011 for women was $20.11 compared to $22.81 for men.

In 2011, Québec women earned $666.21 compared with $851.68 for men, a difference of $185.47. The difference in hourly earnings between men and women was smaller in 2011 than in 2001. In 2011, in average, a man earned $851.68 per week. This amount is $185.47 more than a woman’s weekly earnings. In turn, that difference was $188.96 in 2001. Over the years, the discrepancy in weekly earnings between men and women has fluctuated, reaching, for example, $178.33 in 2007 and $190.28 in 2009.

However, the report also finds that women earned an average hourly compensation of $20.11, approximately nine-tenth that of men ($22.81). In addition, women worked an average of 32.1 hours, 4.5 hours less than their male counterparts, according to Québec labour statistics. This disparity may be attributable to the fact that women miss more work for personal or family reasons. The study demonstrates that women left work for family reasons on average of 71 hours per year. In comparison, men missed an average of 18 hours per year.

The ISQ has not investigated whether the Pay Equity Act, RSQ, c E-12.001, could have played a part in the narrowing of the female wage deficit. Enacted in 2005, the purpose of the Pay Equity Act is to redress, within an enterprise, differences in compensation due to the systemic gender discrimination suffered by persons who occupy jobs in predominantly female sectors of economic activities.

The Act to amend the Pay Equity Act, tabled by the Minister of Labour as legislation designed to “strengthen the Pay Equity Act”, came into force on May 28, 2009. Whereas before, enterprises merely had a general obligation to ensure that pay equity was maintained, enterprises are now required to conduct a pay equity audit every five years and post the results, including a summary of the audit process, a list of the predominantly female job classes identified in the enterprise, a list of the predominantly male job classes used as comparators, and for each predominantly female job class, the percentage or amount of the compensation adjustments to be paid and the terms and conditions applicable to their payment.

The complexities of pay equity legislation can generate significant financial costs for companies subject to its application. However, despite these efforts, men are nonetheless still earning considerably more than women on weekly average wages and it might take a number years before gender-based differences in compensation are significantly reduced.

In collaboration with Marie Dupuis, student at Norton Rose Canada LLP