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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

France: Right to Disconnect Takes Effect

(Jan. 13, 2017) The “right to disconnect” came into effect in France on January 1, 2017. (Clémentine Maligorne, Travail: vous avez désormais le droit de vous déconnecter [Work : You Have the Right to Disconnect], LE FIGARO (Jan. 4, 2017).) This refers to the right of employees to not have to take calls or read emails related to work during their time off. This right was created as part of a broader labor reform law adopted in August 2016.  (Loi n° 2016-1088 du 8 août 2016 relative au travail, à la modernisation du dialogue social et à la sécurisation des parcours professionnels (1) [Law No. 2016-1088 of 8 August 2016 Regarding Labor, Modernizing Labor Relations, and Securing Career Tracks (1)], art. 55, LEGIFRANCE; Nicolas Boring, France : Controversial Labor Law Reform Adopted, GLOBAL LEGAL MONITOR (Oct. 14, 2016).)

The labor reform law amended the Code du travail (Labor Code) to require companies with 50 employees or more to negotiate with employee representatives in order to determine the conditions of use of electronic communication tools. (Code du Travail [Labor Code] (consolidated version as of Jan. 1, 2017), arts. L2242-8 & L2242-9, LEGIFRANCE.) The goal of such agreements must be to ensure that the employees’ non-work hours, vacation time, and personal and family life be respected.  (Id. art. L2242-8.)  If no agreement is reached, the employer must still, after consulting employee representatives, establish a “charter” to define and establish the right to disconnect in that company.  (Id.)  An employer who fails to comply with these requirements may be subject to a fine of up to 1% of the employees’ total remuneration.  (Id. art. L2242-9.)

The French Parliament adopted the reform legislation on the basis of recommendations made in a report submitted to the French Minister of Labor in 2015.  (Droit à la déconnexion – Le droit à la déconnexion fait son entrée dans le code du travail [Right to Disconnect – The Right to Disconnect Enters into the Labor Code] (updated Oct. 24, 2016), Ministère du Travail, de l’Emploi, de la Formation Professionnelle et du Dialogue Social [Ministry of Labor, Employment, Professional Training, and Social Dialogue] website.) This report suggested a right to disconnect as a way to reduce stress and ease the tension between a worker’s personal and professional life. (Bruno Mettling et al., Transformation numérique et vie au travail [Professional Life and Information Technology Transformation] La Documentation Française website (Sept. 2015).)

Recognizing that today’s economy requires flexibility and that a “one size fits all” solution would not be possible, the report also highlighted the importance of negotiated rules and protocols at the level of each individual company. (Id.)  Negotiations between the employer and employee representatives are a central part of the new law, in order to find a balance between the employees’ need to disconnect and the employing companies’ competitive needs, in accordance with each company’s specific situation and requirements, the report stated.  (Id.)

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Indonesia: New Task Force to Monitor Foreigners

(Jan. 13, 2017) On January 6, 2017, Indonesia’s government announced a plan to revise its current method of oversight of foreigners in the country. Due to concern that foreigners may enter Indonesia and pursue goals other than those for which they were granted entry, the administration will establish a task force that would track the movements of foreigners within the country. According to the Coordinating Political, Legal and Security Affairs Minister, Wiranto, the monitoring “will ensure foreigners who enter and move across Indonesia do not have a hidden agenda, such as working illegally, or even committing terror acts and being involved in the illegal drug trade.” (Marguerite Afra Sapiie, Indonesia to Set up a Task Force to Monitor the Movement of Foreigners, JAKARTA POST (Jan. 7, 2017).)

Wiranto commented that the new task force will supplement oversight functions in the current system, which is designed to monitor foreigners when they first enter Indonesia but has less coverage of what they do once inside the country. Under the new arrangement, he said, local administrations will have augmented abilities to follow the actions of foreigners in their areas. (Id.)

The new task force’s responsibilities will be similar to those of the former foreigner oversight team, a unit under the National Police established under the Suharto regime (1965-1998) but abolished in 2011 by the adoption of a new Immigration Law. (Id.; Law of the Republic of Indonesia Number 6 of 2011 Concerning Immigration (May 5, 2011), Directorate General of Immigration website; Undang-Undang Republik Indonesia Nomor 6 Tahun 2011 Tentang Keimigrasian (May 5, 2011), House of Representatives of Indonesia website; Alice Donald, Rise and Fall of Strongman Suharto, BBC NEWS (Sept. 28, 2000).) According to Commander General Syafruddin, the Deputy Chief of the National Police, the police will now have a role in monitoring the activities of foreigners, under the coordination of national security officials. (Sapiie, supra.)

Background 

In 2016, 7,787 individuals, including 1,837 Chinese people, were punished for violating Indonesian immigration rules. (Id.) A rumor spread that millions of Chinese had been working in the country illegally, something that Indonesia’s President Joko Widodo denied repeatedly. As of November of last year, over 74,000 foreigners were working legally in Indonesia, and only a little more than 21,000 were from China. (Id.)

There have been some well-publicized cases of foreigners, particularly those from China, engaging in illegal work. A raid on New Year’s eve in West Jakarta Province resulted in the arrest of 76 Chinese citizens working as prostitutes in nightclubs. Passports and cash equivalent to US$1,200 were seized, together with other evidence of the crime. Local police were aided by the military police in the operation. (Winda A. Charmila & Nurul Fitri Ramadhani, Indonesian Immigration Office Continues to Hunt Illegal Foreign Workers, JAKARTA POST (Jan. 9, 2017).)

Prostitution is not the only form of illegal work that has attracted foreigners to Indonesia. Earlier this month, 12 Chinese citizens’ passports were confiscated by immigration officials in West Nusa Tenggara Province after they worked in a dredging operation from a Chinese ship without proper permits. Although the workers had special immigration facilitation letters known as Dasuskim that allowed them to work on the boat, they were reportedly also installing a pipeline in the ground, which was considered a misuse of their permits. (Panca Nugraha, Passports of 12 Chinese Citizens Confiscated over Alleged Stay Permit Misuse, JAKARTA POST (Jan. 4, 2017).)

Administration Comments  

Minister of Manpower M. Hanif Dhakiri stated that the number of foreigners working without proper legal status is small, compared to the number who are working in Indonesia legally, but that the Ministry would intensify oversight and continue the present plan under which businesses that hire foreign workers are inspected periodically and would also respond to specific reports that workers without legal status are employed. (Sapiie, supra.) Dhakiri added, “[w]e will continuously improve our monitoring, but the public should also stop fussing over the matter. It’s true that there are problems [related to illegal foreign workers], but don’t create a hyperbolic issue over that.” (Id.)

The Minister of Law and Human Rights, Yasonna Laoly, whose ministry includes the Directorate General of Immigration, noted that the number of foreign workers in the country results from the fact that foreign investors in industry want their own citizens, who have particular qualifications, to work for them. He added that “[g]radually there will be location training [by foreigners] so that [Indonesian workers] can take over the factory because technology transfer is required.” (Id.) He also said that a regulation on this transfer of knowledge that had been issued by the Ministry of Industry will be strengthened. (Id.)

Laoly also commented on the question of whether the expansion of the visa-free entry policy, designed to increase the tourism business, had added to the number of illegal foreign workers, arguing that it had not done so. His office will, however, review the visa policy. (Id.) Wiranto agreed with this approach, stating that an evaluation of the list of 174 countries now under the visa-free policy would be helpful in making sure that foreigners were not taking advantage of it to work illegally in Indonesia. (Id.; Constance Johnson, Indonesia: Plan to Extend Visa-Free Entry to More Foreigners, GLOBAL LEGAL MONITOR (Dec. 22, 2015).)

Comments from Legislators

Dede Yusuf Macan Effendi, a member of the legislature serving on the House of Representatives Commission IX, which oversees health and manpower issues, noted that “[b]ecause the Law and Human Rights Ministry and its immigration directorate general only focus on the country’s border gates, illegal workers are now working for mining and infrastructure projects in the forests.” (Charmila & Ramadhani, supra.) Effendi added that the immigration authorities should work with “the National Police, State Intelligence Agency, National Counterterrorism Agency, Manpower Ministry and local authorities as well.” (Id.)

The Deputy Chairman of the House of Representatives’ Commission IX, Saleh Partaonan Dauley, stated that the government should make sure that the proposed task force does not overlap in its duties with the existing authorities. He also noted that there would be budgetary considerations and that the matter should have been discussed with legislators. (Id.)

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Netherlands: New Offense Tailored to Police Officers’ Use of Force

(Jan. 13, 2017) The House of Representatives (Tweede Kamer) of the Dutch Parliament is considering legislation that addresses the special position of investigating officers in criminal law. (Bill Sent to House of Representatives: Special Position of Investigating Officers in Criminal Law, Ministry of Security and Justice website (Dec. 23, 2016).) Under the draft legislation, “[p]olice officers will no longer automatically be considered a suspect during an investigation into use of force,” and officers’ alleged use of force would be assessed in the light of a newly worded offense “tailored to police officers and criminalising any violation of the rules governing the use of force.” (Id.)  As Minister of Security and Justice Ard Van der Steur noted, the police are permitted to use force, and it is part of their duties to do so, therefore “it is not fitting to treat police officers as suspects right away.” (Id.)

According to the Ministry of Security and Justice, under whose auspices the legislation was presented to the Parliament, the new description of the offense provides more leeway “for a suitable response to use of force by police officers,” taking officers’ special position into account, than the current practice of prosecution for a general violent offense (assault or manslaughter). Nevertheless, the Ministry indicated, the legislation would ensure that “that proper and thorough investigations continue to be conducted into the circumstances of the use of force and into whether the rules were followed.”  (Id.)

Features of the Legislation 

The draft law would amend the Criminal Code to include a specific statutory defense for police officers who have used violence in the legitimate exercise of their duties, along with an offense of breach of the rules of engagement. The draft legislation also would amend the Code of Criminal Procedure to include a basis for conducting a criminal investigation into the use of force by law enforcement officers.  (Voorstel van wet (Herdruk) [Bill (Reprint)], No. 34641-2 (Dec. 23, 2016), Tweede Kamer website (click on PDF icon to view text) (in Dutch).)

The draft legislation would add a paragraph to article 42 of the Criminal Code, stating that an officer who uses force in the lawful performance of his duties and in accordance with the rules of engagement is not to be held criminally liable. (Id. art. IA; Criminal Code (Mar. 3, 1881, text valid as of Oct. 1, 2012), European Judicial Training Network (EJTN) website; Wetboek van Strafrecht [Criminal Code] (Mar. 3, 1881, as last amended effective Jan. 1, 2017), OVERHEID.NL.) It also would insert an article 90novies after article 80octies of the Code, to the effect that rules of engagement are defined by or pursuant to the generally binding provisions on instructions regarding the use of force addressed to officers in the Police Act 2012 and the Special Investigations Act.  (Voorstel van wet, art. IB; Politiewet 2012 [Police Act 2012] (July 12, 2012, as last amended effective Jan. 1, 2017), OVERHEID.NL; Wet op de bijzondere opsporingsdiensten [Special Investigations Act] (May 29, 2006, as last amended effective  Jan. 1, 2013), OVERHEID.NL.)

In addition, the draft legislation provides for insertion of a new article 372 in the Criminal Code, on the punishment of officers who have been granted the authority to use force under the Police Act and the Special Investigations Act and who are guilty of violating the provisions on the rules of engagement.  If an officer’s improper action causes injury, the punishment would be imprisonment for up to one year or a fine; if it results in serious bodily harm, the punishment would be a prison term of up to two years or a fine; and if it causes death, the officer would be imprisoned for up to three years or fined.  (Voorstel van wet, art. IC.)

In the Code of Criminal Procedure, the draft legislation would insert, among other changes, a new article 511a on investigations of the use of force by officers. The article would provide, in part, that a prosecutor could order that a fact-finding investigation be conducted in cases where an officer authorized to use force has used force in carrying out his duties; the officer concerned would be informed that an inquiry is being conducted.  (Id. art. IIC, art. 511a(1); Code of Criminal Procedure (text valid on Oct. 8, 2012), EJTN website; Wetboek van Strafvordering (Jan. 15, 1921, as last amended effective Jan. 1, 2017), OVERHEID.NL.) The fact-finding would be aimed at determining whether the use of force was in accordance with the rules of engagement.  (Voorstel van wet, art. IIC/art. 511a(2).) Insofar as they are relevant, articles 51a-51d of the Code (on the rights of the victim) would apply mutatis mutandis.  (Id. art. IIC/art. 511a(3).)  The proposed new article further provides that additional rules about fact-finding can be set by or pursuant to an administrative order.  (Id.)

A proposed new Criminal Procedure Code article 511aa sets forth the powers conferred under the Code on the prosecutor, assistant prosecutor, or investigating officer as the competent authorities of the fact-finding. (Voorstel van wet, art. IIC/art. 511aa(1).)  Such powers would only be exercised if: the use of force has resulted in an injury; the exercise of the investigatory powers is reasonably proportionate to the nature of the use of force under investigation; and the collection of data for the fact-finding exercise by the relevant authority cannot be conducted in another, less intrusive manner. (Id. art. IIC/art. 511aa(3)(a-c).)  Under a draft new article 511ab, the prosecutor would decide on the basis of the fact-finding what subsequent decision would be taken and would promptly transmit his decision in writing to the officer concerned.  (Id. art. IIC/art. 511ab(1)&(2).)

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Sweden: Separate Swimming Hours by Gender Justifiable

(Jan. 12, 2017) The Swedish Diskrimineringsombudsmannen (DO, Equality Ombudsman) has issued two decisions on the legality of separate hours for men and women at public indoor pools. (Press Release, Könsseparerade simhallstider kan vara diskriminering [Gender-Segregated Pool Hours May Be Discriminatory], DO website (Dec. 14, 2016).)

The role of the Equality Ombudsman is regulated by the Act on Equality Ombudsman and the fourth chapter of the Discrimination Act. (Lagen om Diskrimineringsombudsmannen [Act on Equality Ombudsman] (Svensk författningssamling [SFS] 2008:568), RIKSDAG; Lagen om diskriminering [Act on Discrimination] (SFS 2008:567), RIKSDAG.) The Ombudsman enforces compliance with Swedish anti-discrimination law by making violators voluntarily comply with the law. (4 ch. 1§ Discrimination Act.)

In its decisions of December 14, 2016, regarding cases GRA 2016/8 (DO) and GRA 2016/9 (DO), the Equality Ombudsman found that, according to the law, members of each sex should be treated the same way and gender-segregated pool hours are typically a form of discrimination. The Ombudsman went on to state that only rarely could separate swimming hours be considered permissible under Swedish anti-discrimination law.  (Könsseparerade simhallstider kan vara diskriminering, supra.)

The deciding factor for determining whether having such separate hours constitutes permissible discrimination is whether “the measure has a justified purpose and the measure that is used is appropriate and necessary to accomplish the purpose.” (Id.)  According to the Equality Ombudsman, an example of such permissible discrimination is providing separate swimming hours in order to provide an opportunity for women who, because of religious convictions, cannot swim together with men and who, without the segregated swim hours, would not have the opportunity to learn to swim.  (Id.)

In a case involving a related issue, the European Court of Human Rights (ECHR) announced January 10, 2017, that Switzerland could require girls attending school to attend co-ed swim classes over the protests of their parents who objected on religious grounds.  The ECHR found the authorities did not violate article 9 (on the right to freedom of thought, conscience, and religion) of the European Convention on Human Rights, noting that the school had tried to accommodate the parents by allowing the girls to wear burkinis. (Press Release, ECHR, By Refusing to Exempt Two Muslim Pupils from Compulsory Mixed Swimming Lessons, the Swiss Authorities Had Given Precedence to the Children’s Obligation to Follow the Full School Curriculum and Had Not Infringed the Right to Freedom of Religion (Jan. 10, 2017), HUDOC; Osmanoglu and Kocabas v. Switzerland, App. No. 29086/12, Eur. Ct. H.R., HUDOC (in French).)  The German Federal Constitutional Court recently issued a similar ruling. (Jenny Gesley, Germany: Court Declines Case Challenging Mandatory Participation of Female Muslim Student in Co-Ed Swim Class, GLOBAL LEGAL MONITOR (Dec. 15, 2016).)

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