Jan 5, 2017

Out of sight, not out of mind: Travelling employees

 
Out of sight, not out of mind: Travelling employees
Photo credit to Magic Transfers


Aran Alexander outlines employers' duties to employees travelling for work

'We need you to fly out for meetings next week' is a common statement in today's workplace.

As Asia gets 'smaller', more employees and managers have regional responsibilities beyond the country in which they live and work. Multinational companies no longer just look in the same office, or even the same country, to find the expertise required in completing a task or solving an issue.

Portable project teams are becoming more common, as they prove to be an effective business tool. Employees of all levels of seniority are increasingly expected to travel around Asia for client presentations, meetings and short-term assignments.

The benefits of flying employees in and out are numerous: better collaboration between colleagues, productivity improvements, sharing of knowledge and having the right people at the company's disposal. However, with benefits come risks, and companies may not be aware of their legal exposure when they send employees abroad for work.

The duty of care across borders
Natural disasters, terror attacks, civil unrest, nuclear accidents, military coups and epidemics (bird flu, swine flu and now Zika) have all occurred in Asia recently. Employers must be mindful that sending employees overseas – even just for a meeting – may give rise to different or increased risks. Out of sight should not mean out of mind, particularly when it comes to your legal obligations to employees.

In common law countries, such as Singapore, Malaysia, Hong Kong, Australia and New Zealand, employers owe a duty of care, in one form or another, to provide a safe work environment for their employees. This obligation does not cease simply because the employee temporarily leaves the office or the jurisdiction. In fact, an employer in Hong Kong is held to a higher duty of care when sending an employee to work in a less developed location, especially where health risks are not fully known (in that case, mainland China).[1]

In Indonesia's civil law system, various labour laws, regulations and decrees create a general duty to ensure the health and safety of employees at work. This does not expressly extend to work performed outside Indonesia. However, if the worker remains employed by the Indonesian company during an overseas assignment, arguably, the Indonesian labour law will apply to any work-related incident.
With the development of work safety and health laws over the past two or three decades, various obligations to protect workers have also been enacted into legislation, codes, ordinances and regulations throughout the Asia-Pacific region. An analysis of the different countries' laws shows that none of them specifically contemplate risks or accidents occurring outside the country. However, the broad language used in the laws of countries, such as Australia, China, Vietnam, Singapore and Hong Kong, means that there may be legal consequences in those countries (including prosecution, penalties and imprisonment of senior management) if the employee suffers an injury at work whilst overseas.

Legal considerations
- Duty of care
- WHS obligations
- Workers' compensation/accident insurance
- Anti-harassment/discrimination/bullying laws

Workers’ compensation and accident insurance
Regulation relating to workers' compensation and accident insurance is another potential source of liability for employers. The Law on Occupational Hygiene and Safety, which came into effect in Vietnam on 1 July 2016, applies to 'labor accidents occurring outside the workplace or outside working hours but on assignment from the employer'. In Vietnam, employment law must be interpreted in a way that is beneficial to the worker. As such, an injury occurring on a business trip may still subject the Vietnamese employer to workers' compensation obligations. Similarly, an employee based in Malaysia, Australia, China or Indonesia, who suffers an injury while performing work overseas is likely to be entitled to compensation under the laws of the 'home' country.

Like Singapore, Hong Kong is viewed as one of the more 'employer-friendly' jurisdictions in the region, with its employment law system being relatively easy to navigate. For this reason, some companies employ workers in Hong Kong and then deploy them around the region. These companies may not be aware that if a worker with a Hong Kong employment contract is injured while performing work outside Hong Kong, the Employees' Compensation Ordinance expressly applies, and the employer may be liable to pay compensation in Hong Kong.

Harassment and discrimination
What if an employee suffers harassment whilst on overseas assignment? Whilst Singapore's Protection from Harassment Act does not impose specific obligations on employers, it does apply if the victim was outside Singapore when the incident occurred. A Singaporean employer could be vicariously liable if the harassment was perpetrated by a colleague, or if the employer placed the victim in an unsafe environment. The Hong Kong Sex Discrimination Ordinance, on the other hand, only applies to sexual harassment occurring in Hong Kong and does not extend to harassment that occurs during an overseas business trip.

Mitigating risk
For companies with operations in multiple countries throughout Asia-Pacific, it will be necessary to understand the different obligations under the specific laws of each jurisdiction. However, it may be possible to adopt a best practice approach, including using a 'checklist' prior to an employee undertaking any business travel:

- Is the destination known to contain risks to health and safety?
- Have you checked current travel warnings and advisories?
- Have you taken steps to identify any safety risks at the location(s) the employee will be visiting?
- Have you arranged an induction for the employee with the controller of the premises (eg local office management or the client)?
- Have you provided the employee with information on local risks/dangers?
- If risks do exist, have you considered alternatives (eg security measures, postponing travel or video-conferencing)?
- Has your company appointed someone to monitor these issues?

If an employee does suffer an injury or illness whilst on a work trip, various questions will arise, such as:

- Was the incident in the course of their employment (or, for example, did it occur 'after hours' or on a personal side trip unrelated to their work assignment)?
- Does the company have a history of work-related incidents/accidents?
- Was the risk foreseeable?
- Did the employer take all reasonable steps to keep the employee safe?
- Did the relevant managers and directors of the company exercise due diligence to prevent the risk?
Managing risks and keeping employees safe when they are not present in the country present challenges for any company. However, this is not the concern of governments and lawmakers, who are focused on eliminating work-related injuries and fatalities, and industrial disease.

Notwithstanding the differences in law between the countries, employers in Asia-Pacific are expected to take a proactive approach in protecting the health and safety of all their employees, regardless of their location at any given time. This will require companies, including the highest levels of their management, to provide the thought and resources required to identify and meet their various obligations.

Aran Alexander is a senior associate, Baker & McKenzie.Wong & Leow

[1] Li Hoi Shuen vMan Ming Engineering Trading Co Ltd [2006] 1 HKC 349

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