In this issue of Bird & Bird's APAC Frontline, we look back at the various changes and developments in the last quarter across Australia, Hong Kong, the People's Republic of China (PRC) and Singapore.

In Australia, we explore the new JobMaker Hiring Credits scheme, the extended JobKeeper payment scheme and the landmark decision of Mondelez on employee leave entitlements. In Hong Kong, we examine the long-awaited Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020, the upcoming enhancement of maternity leave benefits introduced by the Employment (Amendment) Bill 2019 and the decision of Xu Yi Jun in relation to deductions from wages. In China, we report on government initiatives to implement local labour laws in Shenzhen and the promotion of job sharing as a new work arrangement to stabilise and support the labour market during the pandemic. In Singapore, we look at the increase in minimum qualifying salary for new Employment Pass applications and the Safe Management Measures at the Workplace for organisations who are starting a return to work process.


Legal Updates: Australia

JobMaker Hiring Credits

The Federal Government has introduced a new scheme, aimed at promoting employment for young people. Under the JobMaker Hiring Credit eligible employers can claim up to $100 or $200 per week for 12 months for each eligible employee aged between 16 and 35 years who is hired between 7 October 2020 and 6 October 2021. The payment can be claimed quarterly, in arrears, from the Australian Taxation Office (ATO) from 1 February 2021.

There are a number of eligibility requirements for employers such as:

a) Meeting the 'additionality criteria', that is broadly aimed at demonstrating that the job is 'additional';

b) Being up to date with tax lodgement obligations;

c) Reporting through single touch payroll (STP);

d) Keeping adequate records of the paid hours worked by the employee; and

e) Not claiming JobKeeper payments.

The 'additionality criteria' requires an increase in the total employee headcount from 30 September 2020 and an increase in payroll as compared to the three months prior to 30 September 2020.

To be eligible, employees must have, among other requirements:

a) Worked for at least 20 paid hours per week on average for the weeks they were employed over the reporting period;

b) Received JobSeeker Payment, Youth Allowance (Other), or Parenting Payment for at least one month within the past three months before they were hired; and

c) Must not be claiming the Hiring Credits under another employer.

Employees may be employed on a permanent, casual or fixed term basis.

Registration for the scheme opens on the 7th of December 2020 through the ATO's online services.

A guide to JobKeeper 2.0 – update

The JobKeeper payment scheme implemented by the government in response to the financial impact of the pandemic on businesses across the country has been extended with some amendments (JK 2.0 Scheme). While the scheme will be extended to 28 March 2021, eligibility will depend on actual turnover in the relevant periods, and payments will change to a two tier system. This will happen across two periods: 28 September 2020 - 3 January 2021 (First Period) and 4 January 2021 – 28 March 2021 (Second Period).

Changes include:

1. changed turnover eligibility tests;

2. amended JobKeeper directions; and

3. reduced rates.

Eligibility - Business

In addition to initial JobKeeper eligibility requirements, businesses will now need to meet a further decline in turnover test for the two periods of the extension.

Businesses need to show that their actual GST turnover has declined over the September and December 2020 quarters relative to a comparable period (generally the corresponding 2019 period) using the following guide:

- 50% for those with an aggregated turnover of more than $1 billion;

- 30% for those with an aggregated turnover of $1 billion or less; or

- 15% for Australian Charities and Not-for-profits Commission-registered charities (excluding schools and universities).

The Commissioner of Taxation may also choose to set out alternative tests in specific circumstances where it is not appropriate to compare actual turnover.

Legacy Employers

There are now specific provisions for 'legacy employers' under JobKeeper 2.0. Legacy employers are those that received one or more JobKeeper payments under the initial scheme but who are no longer eligible under the new JK 2.0 Scheme.

Legacy employers will have access to modified work flexibilities for a further 6 month period provided they can show a decline in revenue of at least 10%. To show this decline, employers must obtain a written certificate from a financial services provider which confirms that the employer satisfied the 10% decline in turnover test. Employers with fewer than 15 employees need only provide a statutory declaration to show a 10% decline.
Under the JobKeeper 2.0 Scheme, legacy employers may avail themselves of flexibility provisions such as:

- JobKeeper enabling stand down directions (though different directions than under JK1.0);

- Changing employee duties;

- Changing employees' locations of work; and

- Changing employees' days of work.

Directions issued by legacy employers must not result in an employee working less than 60% of their ordinary hours, or less than 2 consecutive hours on any day.

Additionally, employees must be provided with 7 days' notice of a direction (increased from 3 days), during which time the employer must consult with their employee(s) and their representative (if any) about the direction. Consultation must include:

- information about the nature of the direction;

- information about when the direction is to take effect;

- information about the expected effects of the direction on the employee; and

- an invitation to the employee(s) to give their views about the impact of the proposed direction on the employee(s).

These directions or agreements will cease to have effect if the employer fails the 10% decline in turnover test at the required testing times, which are 28 October 2020 or the start of 28 February 2021.

Eligibility – Employees

Employees will be eligible in the extension periods if they, amongst some other requirements:

- are currently employed by an eligible employer;

- worked for the eligible employer as:

  • a full-time, part-time or fixed-term employee at 1 July 2020; or

  • a long-term casual employee (employed on a regular and systematic basis for at least 12 months) as at 1 July 2020 and who is not not a permanent employee of any other employer.

Employees will be eligible for a payment of $1,200 per fortnight for the First Period and $1,000 per fortnight for the Second Period where they meet the requirements set out above and:

- worked in the business for 20 hours or more a week on average in the four weeks of pay periods before either 1 March 2020 or 1 July 2020; or

- were eligible business participants who were actively engaged in the business for 20 hours or more per week on average.

All other eligible employees and business participants who worked 20 hours or less during the periods will be eligible for the lower rate of $750 per fortnight across the First Period and $650 per fortnight across the Second Period.

Businesses must nominate which payment they are applying for, in respect of each employee.

Case Updates – Australia

 

Employee entitlements – how do you calculate an employee's personal leave entitlement?


In August the High Court of Australia delivered a landmark decision on employee leave entitlements in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union (AMWU) [2020] HCA 29. The decision clarified how employers must calculate employees' entitlements to 10 days' paid personal/carer's leave under the Fair Work Act 2009 (Cth) ("Fair Work Act").

The High Court held that the 'working day' construction determined by the Full Federal Court was inconsistent with the Fair Work Act and found in favour of the 'nominal day' construction entitling employees to accrue leave based on their ordinary working hours.

The decision has been welcomed by employers, confirming the general and longstanding practice of calculating personal leave accruals based on an employee's ordinary hours of work; also known as the 'pro-rated method'.

The Facts of the Case

Two employees employed by Mondelez Australia Pty Ltd ("Mondelez") worked, on average, 36 ordinary hours of work over 3 x 12-hour shifts each week and were covered by an enterprise agreement.

On the employees' behalf, the Australian Manufacturing Workers' Union ("AMWU") submitted that pursuant to section 96(1) of the Fair Work Act, each employee was entitled to be absent from work without loss of pay on ten calendar days per year, defining a 'day' to be a 24 hour period i.e. a "working day". This would mean that the employees would be entitled to 10 ordinary working days of 10x12 hour shifts, or 120 hours over the course of a year.

Mondelez, with the Commonwealth as intervener, contended that section 96(1) does not refer to a calendar or 24 hour 'day' but to its 'industrial meaning' of a 'notional day' consisting of one-tenth of the equivalent of an employee's ordinary hours of work in a two-week period. This would mean the maximum amount of leave accrued under the Fair Work Act would be 76 hours over the course of a year.

The High Court Decision

The High Court majority rejected the 'working day' construction put forward by the AMWU and instead found in favour of the 'nominal day' advocated by Mondelez.

The Court noted the immediate legislative context of section 96(1) makes it clear that the expression '10 days' does not bear its ordinary meaning and that other provisions of the Act relating to personal leave were dependent on the calculation of an employee's ordinary hours of work and could not operate harmoniously if the 'working day' construction was applied to section 96(1). The Court pointed to the potential disparities caused by using the ordinary meaning, noting that part-time employees working for multiple employers may inadvertently be entitled to 10 days' leave from each employer, while a full time worker would only receive 10 days leave from their sole employer.

Ultimately the High Court found that accepting the construction of a 'working day' would give rise to "absurd results and inequitable outcomes, and would be contrary to the legislative purposes of fairness and flexibility in the Fair Work Act"

The High Court therefore found that:

"A 'day' for the purposes of section 96(1) refers to a 'notional day', consisting of one-tenth of the equivalent of an employee's ordinary hours of work in a two-week (fortnightly) period."

So what does this mean for employers?

Personal leave should be accrued at 1/10th of the employee's ordinary working hours over a two-week period or 1/26th of their total ordinary hours over the course of a year. This is a return to the standard accrual calculations, used by employers prior to the Full Federal Court decision.

Employers that may have updated their method of accruing personal leave in the light of the Full Court decision should now update their accrual practices once again.


Singapore


Increase in Minimum Qualifying Salaries for Foreign Employees in Singapore

With effect from 1 September 2020, the minimum qualifying salary for new Employment Pass (EP) applications is S$4,500 (an increase from the previous threshold of S$3,900), with a further increase to S$5,000 for new EP applications in the Financial Services sector from 1 December 2020 onwards.

With effect from 1 October 2020, the minimum qualifying salary for new S-Pass applications is S$2,500 (an increase from the previous threshold of S$2,400). The qualifying salaries for older and more experienced foreign applicants have also been adjusted upwards (amount unspecified).

Hiring choices and the candidate selection process will also come under greater government scrutiny. Previously, there was no job advertisement requirement as a prerequisite to S-Pass applications. With effect from 1 October 2020, a company seeking to make an S-Pass application must show that it has advertised the role on the MyCareersFuture.sg portal for 28 days. As a prerequisite to EP applications, companies must show that they have advertised the role on the MyCareersFuture.sg portal for at least 28 days (double of the previous requirement of 14 days).

Requirements for Safe Management Measures at the Workplace (updated as of 22 October 2020 by the Ministry of Manpower)

With effect from 28 September 2020, employees who are able to work from home may return to the workplace provided that: (i) employers ensure that they continue to do so for at least half of their working time; and (ii) no more than half of employees who are able to work from home are at the workplace at any point in time.

Companies are reminded to pay special attention to vulnerable employees, which refer to persons aged 60 and above, and patients who are immunocompromised or have concurrent medical conditions. This can be done by enabling them to work from home.

For employees at the workplace, employers must ensure the following measures are in place:
  • Ensure that a Safe Management Officer is appointed to assist in the implementation of Safe Management Measures at the workplace.

  • Stagger start times and allow flexible workplace hours (e.g. allow at least half of all employees at the workplace to start work in the workplace at or after 10 am, as far as possible).

  • Implement shift or split teams, such that there should be no cross-deployment or interaction between employees in different shift teams or worksites, even outside of work.

  • For all work-related events at the workplace, (i) the number of persons per event must be capped at 50 persons, (ii) attendees must maintain at least 1 metre safe distancing; and (iii) food and drinks should preferably not be served.

  • Minimise socialising.

  • Ensure that all onsite personnel wear masks at the workplace at all times.

  • Use of SafeEntry visitor management system to record the entry of all onsite personnel (including employees and visitors) entering the workplace.

  • Introduce demarcation of safe physical distances (at least 1 metre apart) using visual indicators.

  • Minimise need for physical touchpoints.

  • Ensure regular cleaning and disinfection of common spaces, machinery and equipment shared between different employees across different shifts or alternate teams.

  • Provide cleaning and disinfecting agents.

  • Ensure regular checks for temperature and respiratory symptoms for all onsite personnel.

  • Actively monitor unwell employees.

  • Ensure that an evacuation plan is prepared for unwell or suspected cases, as well as for other onsite personnel.

  • Ensure that a follow-up plan is in place in the event of a confirmed case.

This article is produced by our Singapore office, Bird & Bird ATMD LLP, and does not constitute legal advice. It is intended to provide general information only. Please note that the information in this article is accurate as at 9 November 2020. We will continue to monitor the situation and provide updates on any changes as soon as these are communicated to us. Please contact our lawyers if you have any specific queries.


Hong Kong


Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020

The Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 ("Amendment Legislation") was gazetted on 19 June 2020 which provides a number of additional protections from discrimination and harassment under the Sex Discrimination Ordinance (“SDO”), Disability Discrimination Ordinance (“DDO”), Family Status Discrimination Ordinance (“FSDO”) and Race Discrimination Ordinance (“RDO”). The main enhancements applicable to employers are summarised in this article:

Harassment in the Workplace
  • The Amendment Legislation extends protection from workplace harassment to "workplace participants" where there is no employment relationship (including interns, volunteers and barristers’ pupils), and also creates obligations for such workplace participants not to harass others in the workplace; and
  • Anyone who engages or hires a workplace participant will be held vicariously liable for acts of harassment committed by the workplace participant, unless it can be demonstrated that the person or organisation took reasonably practicable steps to prevent the workplace participant from committing those acts. 

Race Discrimination

  • Where the original scope of protection provided by the RDO covered direct racial discrimination and harassment on the basis of one's or his/her near relative's race, the Amendment Legislation extends the protection to "associates" of the individual, i.e. his/her spouse or domestic partner, his/her relative or carer and someone who is in a business, sporting or recreational relationship with the individual; and

  • The definitions of "race" and "racial group" of a person under the RDO have been amended to include the imputation of a race or racial group to a person. Therefore, an individual will also be protected from discrimination and harassment on the basis that they are assumed to be of a particular race. 

Breastfeeding Employees

  • An amendment to the SDO will make it unlawful to directly or indirectly discriminate against breastfeeding women, or to victimise them for breastfeeding. The definition of "breastfeeding" includes both the act of breastfeeding a child and the expressing of breast milk.

  • While all of the changes under the Amendment Legislation took immediate effect from 20 June 2020, this amendment will only come into force in 12 months (19 June 2021). 

Intention to discriminate

  • Prior to the enactment of the Amendment Legislation, if the defendant could prove that there was no intention to discriminate, the person claiming that he or she was a victim of indirect discrimination under the SDO, RDO or FSDO was not entitled to an award of damages.

  • The lack of intention to discriminate will no longer be a defence to a claim for damages in such cases.

Key takeaways

Although some of the amendments will only come into force in June 2021, employers are advised to evaluate the adequacy of their anti-discrimination and harassment policies for compliance with the Amendment Legislation.

  • As the lack of intention to discriminate is no longer a defence to a claim for damages, employers should ensure that they do not, without proper justification, impose requirements or conditions on employees which might inadvertently place protected employees at a disadvantage (e.g. because of a disability or on the ground that they are a parent or carer).

  • Anti-harassment training and policies should be extended to all workplace participants to minimise any vicarious liability.

  • Employers should update their relevant policies and code of conduct such that they cover situations of discrimination and harassment of breastfeeding employees and take into account the expanded scope of racial discrimination/harassment.

  • Although the Amendment Legislation does not impose a positive obligation to offer lactation breaks or facilities, it is advisable for employers to ensure that workplace policies and practices do not inadvertently place them in contravention of the Amendment Legislation. 

Enhancement of maternity leave entitlements


On 9 July 2020, the Legislative Council passed the Employment (Amendment) Bill 2019 (the "Bill") which will come into effect on 11 December 2020.
The Bill enhances the existing maternity leave entitlements as follows:
  • Increase of the statutory maternity leave entitlement from 10 weeks to 14 weeks.

  • The daily rate of maternity leave pay for the extended maternity leave period (i.e. after the initial 10 weeks) will remain at the existing statutory rate of four-fifths of the employees' average daily wages. The total additional maternity leave pay for the additional 4 weeks’ period is subject to a cap of HK$80,000. Therefore, for any employees whose aggregate average daily wages for the additional 4 weeks’ period exceeds HK$100,000, the additional maternity leave pay that is required to be paid will be capped at HK$80,000.

  •  Reduction of the period of pregnancy for the definition of "miscarriage" from 28 weeks to 24 weeks, such that an employee who suffers a miscarriage at or after 24 weeks of pregnancy will be entitled to maternity leave.

  • A pregnant employee will be able to claim sickness allowance if she is able to produce a certificate of attendance from a professionally trained person such as a registered medical practitioner, registered midwife or nurse for the purpose of attending a medical examination for her pregnancy.

  • The time during which male employees are able to take their statutory paternity leave has been extended from within 10 weeks after the birth of his child to within 14 weeks.

For the transitional arrangement, a female employee will be entitled to the additional 4 weeks of maternity leave and the additional maternity leave pay if her confinement occurs on or after 11 December 2020, even if notice of her pregnancy and her intention to take maternity leave is given prior to 11 December 2020.

Employers should review and update their existing maternity and paternity leave policy for compliance with the Bill in light of it coming into operation by the end of 2020.
 

Deduction from Payments and the Defence of Set-Off Struck Down by Court

 
Employers who query whether they can withhold or set-off incentive payments or bonuses from employees relying on the provisions in the Employment Ordinance (“EO”) regarding deduction from wages will learn that such possibility is largely diminished by the Court of Appeal’s decision in Xu Yi Jun v GF Capital (Hong Kong) Ltd [2020] HKCA 663.

Summary of Facts

The point of contention in this case involved a HK$7,800,000 guaranteed bonus (“Guaranteed Bonus”) that the former employee, Xu Yi Jun ("Employee"), claimed that she was entitled to as against her former employer, GF Capital ("Company").

The Guaranteed Bonus clause in the employment contract was as follows:

The 2016 Guaranteed Bonus will be vested in the following calendar year and payable in full on payment date of your monthly basic salary in March 2017 (the “Due Date”). If your employment with the Company is terminated voluntarily by you without cause or you have been found guilty of any gross misconduct, in either case before the Due Date, any outstanding payments of the 2016 Guaranteed Bonus will be forfeited.

At the time of the Due Date, the Company was conducting an investigation into the Employee's alleged gross misconduct and as such withheld payment of the Guaranteed Bonus. The Employee was subsequently found guilty of gross misconduct and tendered her resignation.

The Employee brought proceedings in the Labour Tribunal claiming the sum of the Guaranteed Bonus with interest. The Company argued that the Guaranteed Bonus was forfeited as a result of the Employee's misconduct, and that the loss and damage caused by the misconduct also gave the Company a defence of equitable set-off.

Decision

The two main issues in this case were: (i) what was the proper interpretation of the Guaranteed Bonus clause, and (ii) whether the set-off was lawful under section 32 of the EO.

(i) Proper interpretation of the Guaranteed Bonus clause

The clause stated that the Guaranteed Bonus would be forfeited if the Employee was "found guilty of any gross misconduct…before the Due Date". There was no dispute that the investigation was on-going and the Employee had not been found guilty of any gross misconduct prior to the Due Date.

The Employee argued that the plain and natural meaning of the clause meant that the Guaranteed Bonus could only be forfeited when there was a finding of gross misconduct before the Due Date. The Company objected and argued that the occurrence of gross misconduct prior to the Due Date was sufficient.

The Court held that the language of the clause was very clear that a finding of gross misconduct before the Due Date was necessary to trigger the forfeiture and that the occurrence of misconduct alone was not sufficient.

(ii) Defence of Set-off and Section 32 of the EO

As the Court decided that the Guaranteed Bonus was payable pursuant to the contractual clause, the Company sought to argue that it could exercise an equitable set-off against its liability to pay the Guaranteed Bonus based on the Employee’s misconduct.

In response, the Employee relied on section 32 of the EO and claimed that the set-off would be unlawful under this provision:

No deductions shall be made by an employer from the wages of his employee or from any other sum due to the employee otherwise than in accordance with this Ordinance.

The Company argued that an equitable set-off does not fall within "deductions" under section 32, as such set-off does not extinguish or reduce any claim by an employee for wages, but merely precludes the employee's right to claim for wages where it is manifestly unjust to do so (e.g. employee had conducted bad or negligent work which the employer might be able to claim damages for). It is also submitted that a distinction should be drawn between an equitable set-off in the context of legal proceedings (which should not be precluded by section 32) and an equitable set-off deployed by the employer outside legal proceedings (which should fall within section 32).

The Court agreed with the Employee and rejected the Company's arguments:
  • The legislature could not have intended for a "carefully circumscribed meaning" to the word "deduction", nor to remove the protection against set-off and permit the employer to temporarily deprive the employee of the right to payment until the final resolution of the employer's claim for unliquidated damages against the employee for bad or negligent work.

  • Although the practice of set-off by judgment is permissible (i.e. where cross-liabilities were netted off and extinguished to the extent of the other pursuant to a judgment), this alone does not support the Company's contention that section 32 permits an employer to exercise an equitable set-off in an action by raising a claim for unliquidated damages.

Therefore, the Court held that the equitable set-off of the Employee's claim for the Guaranteed Bonus against the Company's counterclaim is unlawful under section 32 of the EO.

Key Takeaways

  • Employers should review their employment contracts and ensure that there is clear drafting on when payment obligation crystallises and that it reflects their intention, and to introduce flexibility on payment obligations where reasonable and appropriate (e.g. discretionary bonuses).

  • Before making any deductions from payments, employers should carefully consider the circumstances and the relevant contractual provision to determine whether the sums have already been vested, in which case the deduction is prohibited under section 32.

  • As set-offs against sums are generally unlawful under section 32 (unless any of the permitted exceptions under section 32 are applicable), it is prudent for the employer to first pay the sum to the employee and to then bring a claim against the employee for damages.

China


Shenzhen may be given more flexibility in implementing local labour laws

Recently, the general offices of the Central Committee of the Communist Party of China and the State Council jointly unveiled a new implementation plan which aims to shape Shenzhen into a model socialist city within the next five years. According to the plan, Shenzhen will be given more room and flexibility to manage its land system, financial and labour market, and will have fewer restrictions on foreign investment in cutting-edge technologies.

On 14 October 2020, the Department of Justice of Guangdong published its response to the Chinese People's Political Consultative Conference (CPPCC) consultation regarding the implementation plan. In the response, the Department of Justice of Guangdong proposed it will request instructions from the Standing Committee of the National People’s Congress for Shenzhen to make local adjustments when implementing the Labour Law and the Employment Contract Law in the region. Previously, the State Council has permitted Shenzhen to adjust the current nationwide working hour system in order to explore the possibility of implementing a more vigorous working hour system locally.

It is expected that more specific and localised labour rules tailored to the region will be introduced in the following years in Shenzhen. We will provide an update once there are further developments.      

New Guide on Promoting Job-Sharing among Employers

Job sharing is a new work arrangement under which employers are allowed to offer jobs to full-time employees who are employed by other companies but are temporarily idle or without sufficient workload due to the COVID-19 pandemic. The job sharing arrangement does not involve transferring of the employment relationship.

Generally speaking, labour law is a highly regulated area under PRC law, and job sharing is likely to expose employers to the risk of illegal labour dispatch.

For the purposes of stabilising and supporting the labour market during the pandemic, a regulated form of job sharing arrangement is introduced to address the issue of surplus labour in the industries hardest hit in China.

On 30 September 2020, the Ministry of Human Resource and Social Security issued a guide, requiring the labour authorities at all levels to take measures to facilitate job sharing among companies. We have summarised the key areas of the guide below.

Operation of the job-sharing arrangement

Cooperation agreement and amending employment contracts
  • To implement a job sharing arrangement, a cooperation agreement will need to be signed between the home company and the host company. The home company will also need to amend the employment contracts with its employees who will be "shared" to the host company.

  • Dispatching workers are not allowed to be engaged in job-sharing arrangements.

  • There is no limitation on the number of job-sharing employees that are received by the host company or offered by the home company.

  • Authorities will assist and guide job-sharing companies to sign the cooperation agreement which will include the following provisions: (a) number of involved employees, (b) new working location, (c) term of the job sharing arrangement, (d) job duties, (e) rest and work hours, (f) labour condition and protection commitment, (g) salary standard and payout details, (h) accommodation, (i) situation for early return of employees, (j) responsibility allocation regarding workplace injuries, and (k) transportation fees etc.

  • Authorities will also assist home companies to amend their employment contracts with the job-sharing employees in accordance with the following principles:

- The home company will need to seek the employee's consent to the job sharing arrangement

- The current employment relationship must not be changed or altered by the job sharing arrangement

- The amendment to the employment contract will specify (a) the new working location, (b) position and job duties, (c) rest and work hours, (d) salary standard, (e) labour condition and protection, and (f) obligations to comply with the internal rules of the host company etc.

Costs of the job sharing arrangement

  • The host company will pay labour costs to the home company for the job sharing arrangement. The home company is not allowed to charge any other fees.

  • The home company will continue to pay the salary to the job-sharing employees directly.

Termination of the job sharing arrangement

  • When the term of the job sharing arrangement expires, the employees will return to the home company, unless the cooperation agreement between the host company and home company is renewed and the employees agree to continue the job sharing arrangement.

  • During the job sharing term, the host company may return the job-sharing employees to the home company under the following situations:

    • The employee is involved in gross misconduct;

    • The employee is incapable of performing his/her new job duties; or

    • Any situations agreed in the cooperation agreement under which the host company may return the employees to the home company.

  • A job sharing employee may request to be returned early to the home company under the following situations:

    • If the host company fails to protect the employee's interests as agreed under the cooperation agreement, the employee may request to be returned to the home company and the home company is not allowed to reject the request

    • If the employee is unable to adapt to the new position, he or she may negotiate with the home company and the host company to return to his/her original position with the home company

Supporting measures from authorities

  • Reduce social insurance contributions of companies that are supported mainly by job-sharing employees

  • Proactively monitor the data on labour shortage or surplus, publicise free recruitment information for employers through the government platform, and organise career fairs more frequently

  • Encourage human resource agencies to establish job sharing information platforms

  • Train job-sharing employees

  • Provide free basic labour law consulting service for job-sharing employees and employers

As the number of COVID-19 cases in China has been maintained at low levels since April 2020, the job sharing arrangement will aid the labour market on its road to recovery.