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Introduction

In 2019, the World Economic Forum proudly announced that the time to achieve parity [1] had been reduced to 99.5 years (from 108 years in 2018).

Fast-forward to the Covid-19 pandemic, in 2021, the time to close the gender gap has increased by one generation according to the World Economic Forum’s 2021 Annual Report on Global Gender Inequality, from 99.5 years to 135.6 years. Despite the equalisation of opportunities in education and health, women still do not have equal opportunities and face economic barriers, declining political participation and difficulties in remaining in the workplace.

Since 2021, 18 economies have introduced 34 gender equality reforms (the lowest number since 2001). In spite of these reforms, nearly 2.4 billion women of working age still do not have the same legal rights as men according to the World Bank’s 2023 Women, Business and the Law report.

Our snapshot of women’s situation in the workplace in five Asia Pacific economies follows.

Note

[1] Closing the gender gap in politics, economics, health and education.

Contents

China

India

Indonesia

Singapore

Vietnam

China

[Yu DING and Jing GAO, Associate Lawyers]

In China, the concept of gender-equality is deeply rooted in the hearts of the Chinese, and female employees are protected under various laws and regulations in place, to ensure they can enjoy the same rights as male employees. Nevertheless, it is undeniable that there still exist some social phenomena which breach the principle of gender-equality when in the workplace, for examples:

• gender discrimination: Some companies may prefer to hire or promote male employees over female employees, especially for higher-level positions, as they subconsciously think that men are better suited for certain roles.
• pregnancy discrimination: Some companies may choose not to hire or promote female employees who are of childbearing age or who are currently pregnant.
• overtime work: In some industries (e.g. high technology, architecture, finance and medical), it is common that the working hours are extended for the business concern. However, it becomes a challenge for female employees who also have family responsibilities to balance their work and life.
• limited opportunities for career development: Some companies prefer to grant the training or mentoring chances to male employees as they take it for granted that male employees could bring more achievements after being trained or mentored.
• sexual harassment: Despite the legal protections in place, sexual harassment can still occur in the workplace. Some female employees may feel uncomfortable reporting incidents of sexual harassment due to fear of retaliation or lack of support from the companies.

It should be noted that while these situations do occur, they do not represent the common practice in China. Many companies are committed to creating a safe and inclusive workplace for all its employees, regardless of gender. It is also worth noting that there are also organizations and authorities in China that are working to address these issues and promote gender equality in the workplace.

Evolution of Legislation in China

With the continuous development of the economy, the proportion of female employees and their role in the workplace are increasing. Thus, the protection on the legal rights and interests of the female employees are becoming the top priority.

On April 3, 1992, the National People’s Congress of the People’s Republic of China (“P.R.C”) promulgated the Law on the Protection of Rights and Interests of Women of the P.R.C (“1992 Women Protection Law”), which officially came into effect on October 1 of the same year. This could be deemed as a first attempt for China to explicitly protect the women’s rights in the form of legislation.

The government has fully confirmed the importance of women in economic development and the 1992 Women Protection Law clearly provides that gender equality shall be a basic national policy, and women shall enjoy equal rights as men in all aspects of political, economic, cultural, social and family life etc. Such Law protects the women’s rights mainly on the points of political rights, the rights on cultural education, labor rights, property rights, personal rights as well as the rights on marriage and family. The Women Protection Law has been revised in 2005, 2018 and 2022 respectively and the latest version was released on October 30, 2022 and being valid on January 1, 2023 (“2023 Women Protection Law”).

On July 5, 1994, the Labor Law of the P.R.C (“Labor Law”) was promulgated by the Standing Committee of the National People’s Congress of the P.R.C., and entered into force on January 1, 1995. The 1994 Labor Law contains a chapter named “Special Protection on Female Employees and Underage Workers”. Although such chapter counts only seven sections and only six of them relate to the female employees, it refines the specific measures on the protection of female employees. The latest labor law took effective on December 29, 2018 (“2018 Labor Law”).

In order to ensure the protection of female employees’ legal rights and interests, the State Council promulgated the Special Regulations of Labor Protection on Female Employees (“Special Regulations on Female Employees”) on April 28, 2012, which was officially implemented on the same date.

The Women Protection Law, the Labor Law and the Special Regulations on Female Employees constitute the cornerstone to ensure the female employees in China can enjoy the same rights as male employees and can equally compete with men in the companies.

Key Legal Provisions

Gender-equality during the recruitment process

A company cannot:

• only hire males or specify that males are preferred;
• in addition to the basic personal information, further enquire about the marriage and childbirth status of the females;
• include a pregnancy test as part of the employment physical examination;
• make restriction on marriage or childbirth status as a condition for employment;
• refuse to employ females on the consideration of gender, or raise the employment standards for females in other manners.

Where the company violates the aforesaid provisions during the process of recruitment, it shall be ordered to rectify by the human resource and social security department. Where the company refuses to make corrections, a penalty ranging from RMB10, 000 to RMB 50, 000 shall be imposed.

Gender-equality while employed

In principle, company shall insist on the principle of gender-equality in all aspects during the employment, such as the treatments on salary and benefit, making promotion, evaluation and recognition of the professional titles, the provision of training. Any tangible or intangible treatments of the female employees shall not be affected due to marriage, pregnancy, taking maternity leave and nursing. Otherwise, the employer shall be ordered to rectify by the human resource and social security department. Where it refuses to make corrections, a penalty ranging from RMB10, 000 to RMB 50, 000 shall be imposed.

Prevention of sexual harassment

The Special Regulations on Female Employees simply provides that the company shall prevent and forbid the sexual harassment on its female employees in the working place. However, it fails to further specify the relevant measures to be taken as well as the corresponding legal consequences. Such issue has been addressed by 2023 Women Protection Law.

The 2023 Women Protection Law clearly provides that it is prohibited to commit sexual harassment against women by means of words, texts, images, physical, physical acts, etc., against their will. In case of suffering the sexual harassment, the female victims can file complaints with relevant entities and State authorities, and the latter shall handle the complaints in a timely manner and deliver the handling result in writing. Moreover, the female victims can also choose to report the case to the public security authority or bring a civil lawsuit to the court, requesting the person who commits the harassment acts to assume the civil liabilities in accordance with the law.

Article 25 of Women Protection Law 2023 specifies the measures to be taken by the companies for their female employees regarding the sexual harassment:

• formulate rules and regulations to prohibit sexual harassment;
• specify the responsible department or personnel;
• carry out education and training activities on prevention and redressed of sexual harassment;
• take necessary security and safeguard measures;
• set up complaint hotline, mailbox, etc. and unlock compliant channels;
• establish and improve investigation procedures, and handle disputes in a timely manner;
• protect the privacy and personal information of the concerned parties;
• support and assist the female victims in safeguarding their rights;
• provide psychological counseling to female victims when necessary.

Where a company fails to take necessary measures to prevent and stop sexual harassment, resulting in the infringement of the rights and interests of women or significant social influence, it will be ordered by the competent authority to make corrections. If it refuses to make corrections or the circumstances are serious, the directly responsible person and other directly liable persons shall be imposed sanctions according to law.

Special Entitlements of Female Employees in China

• Labor Contract: Labor contracts must contain a clause regarding the special protection on female employees when hiring them.
• Hygiene and health: the companies shall strengthen the labor protection on their female employees, take measures to improve the working hygiene conditions and carry out the training on labor safety and hygiene to female employees. Moreover, the companies are also required to arrange specific health examinations (for examples, Gynecological diseases, breast disease examination etc.) for their female employees on a regular basis.
• Working contents: the Special Regulations on Female Employees list the scope of incompatible work for female employees: (i) underground operations in mines; (ii) the works fall within the scope of Grade 4 physical labor intensive work stipulated in the Physical Labor Intensive Work Grading Standards; and, (iii) the works involving carrying weights which exceed 20 kg for six times or more per hour, or intermittently carrying weights which exceed 25 kg. Moreover, it also provides the scope of incompatible work for female employees during their menstruation, pregnancy and nursing.
• Half-day leave on Women’s Day (March 8): All the female employees are entitled to half-day leave to celebrate Women’s Day.
• Entitlements during pregnancy: Pursuant to the Special Regulations on Female Employees, where female employees cannot adapt to the original work during their pregnancy, the companies shall, according to the certificate issued by the medical institutions, reduce the workload or arrange them to engage in other suitable works. In case a female employee needs to have a prenatal check done during working hours, such absence shall be included in the working time.
• Moreover, for female employees who are more than seven months pregnant, the companies shall not extend their working hours or arrange them to perform night shift work, and a certain rest time during working hours shall be arranged for these female employees.
• Maternity leave: Chinese female employees are entitled to a paid maternity leave, in total of 98 days, 15 days may be taken before the due date. Moreover, apart from such 98 days, the female employee also has the right to the additional maternity leave according to the local rules, ranging from 30 days to 90 days due to the change of cities and provinces.
• In case of miscarriage in the first 4 months of pregnancy, the female employee is entitled to 15 days of maternity leave; and in the miscarriage is after 4 months of pregnancy, the employee is entitled to 42 days of maternity leave.
• Maternity subsidies: Female employees are entitled to maternity subsidies during their maternity leave. For those who have subscribed maternity insurance, they will receive the subsidies directly paid by the maternity insurance funds according to their last 12 months worthy average salary; for those who do not subscribe to the maternity insurance, the subsidies will be paid by the companies. In addition, the corresponding medical expenses will also be borne by the maternity insurance funds or the companies based on whether the maternity insurance has been subscribed.
• Entitlements during the nursing period: Until the infant reaches 1 year, the employee is entitled to a nursing break of one hour daily during the working time. In case of multiple birth, the nursing break shall be extended one hour every day for each additional baby. Nursing includes both breast-feeding and bottle-feeding. The nursing period cannot be accumulated or paid in lieu of cash for unused time. Working during nursing hour will not be treated as overtime.
• Special protection in case of terminating the labor contract: The Labor Contract Law of the P.R.C provides limited situations for the companies to lawfully terminate the labor contacts with their employees. Moreover, it further sets its protections on female employees during special period (pregnancy, maternity leave and nursing period, “Special Period”).
• According to the relevant laws and regulations, where female employees are within the Special Period, the companies cannot terminate their labor contracts based on the following reasons:
  • the employees suffer from an illness or a non-work related injury and is neither unable to undertake the original job duties nor other duties arranged by the companies following the completion of the statutory medical period;
  • the employees are not competent to their duties and they remain to be incapable of performing the duties after training or the adjustment of position;
  • the objective circumstances for which the execution of the labor contract is based upon have undergone significant changes and as a result thereof, the labor contract can no longer be performed and upon negotiation between the companies and the employees, both parties are unable to reach an agreement on variation of the contents of the labor contract;
  • economic-layoff.

In addition, where the labor contracts of female employees expire during the Special Period, such labor contracts shall be extended and ended upon the extinguishment of the corresponding situation.

In practice, it is always sensitive to terminate labor contracts of female employees within the Special Period, which can be easily qualified as unlawful termination. In such case, the companies will bear the legal consequence arising from unlawful termination, either making the payment of double economic compensation or reinstatement.

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India

[Lisbeth LANVERS SHAH, Counsel]

Indian’s Constitution guarantees gender equality in its Article 14. It prohibits discrimination in this regard in Article 15 (1). On the economic front, the constitution provides that the state shall make special provisions for women and children to ensure them fair and suitable working conditions and shall guarantee equal pay.

In a traditionally patriarchal society, Indian’s government has been emphasizing women’s economic empowerment for several years through the adoption of policies to support women’s participation in the workforce.

Despite these efforts, the position of women remains precarious, and women’s employment is still one of the lowest in Asia and constantly declining. In 2021, women represented 23% of the Indian workforce compared to 59% in East Asia and the Pacific [2].

Discrimination and wage disparity

With the view to reducing gender inequality, India passed the Minimum Wages Act in 1948 followed by the Equal Remuneration Act in 1976 (“ERA“). The ERA addresses gender pay inequality and measures to prevent discrimination between employees on the basis of their gender.

Despite these policies, the wage gap between a man and a woman remains significant. In 1993, a man earned an average of 48% more than a woman in an equivalent position. In 2018, this gap remained at 28% [3].

Maternity and pregnancy of women in India

On 2017, the Maternity Benefit (Amendment) Act, 2017 (“Reform“) extended government-sponsored maternity leave from 12 to 26 weeks for mothers of up to two children, placing India in the top three most generous countries, behind Canada and Norway.

The Reform also introduced various measures to benefit mothers, such as teleworking and daily breastfeeding breaks. It also placed new obligations on employers, such as the obligation for companies with at least 50 employees to set up a day-care service at their own expense. A similar obligation is found in the Factories Act 1948 and is being replicated in local Shops and Establishments Acts. In 2019, the Ministry of Women and Child Development also published Guidelines for setting up and running crèche facilities under Maternity Benefit Act 2017 setting out the terms of this obligation.

While the Reform may have been welcomed when it was passed, its impact on women’s employment actually seems to have reinforced polarized behaviour. The report Maternity Benefits (Amendment) Act 2017: revisiting the impact published in 2021 by TeamLease, states that 84% of employers consider that the Reform has had a negative impact on them, particularly SMEs whose policy on the recruitment of women is now classified as restrictive (whereas for international groups it varies between benevolent and calculating). 25% of employers admit to adopting a more restrictive policy on the recruitment of women after the reform (35% of employers say they have not changed their recruitment policy), while only 40% of employers say they respect the 26-week maternity leave.

Prevention of sexual harassment at work

Sexual harassment is one of the major issues faced by women in the workplace.

In 2013, the Government of India passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “SH Act”) requiring employers to put in place measures to prevent and redress sexual harassment at the workplace [5],

applicable not only to female employees but also to any woman present at the workplace (including female customers).

Under the SH Act, each establishment with more than 10 employees is required to establish an internal sexual harassment committee (“ISHC”), half of whom are women and one independent member who is sensitive to women’s issues and responsible for handling complaints. It also provide investigation procedures, in which ISHCs have been given the same powers as civil courts by the SH Act.

In addition to the establishment of the ISHCs, the SH Act creates other obligations on employers, such as the implementation of preventive measures (adoption of internal prevention rules, etc.) and awareness-raising measures (organization of awareness-raising workshops).

Each ISHC must prepare an annual report mentioning the number of complaints and the prevention and awareness actions taken by the employer. In case of failure to comply, the employer will be liable to a fine of 50,000 rupees. In case of continuous or repeated violations, the SG Act provides for doubling the fine, deregistration of the company and/or revocation of its licenses.

Ten years after the SH Act came into force, women workers, 95% of whom evolve in the informal sector, are still struggling to access complaint and redress systems.

Conclusion

Despite the implementation of numerous provisions aimed at encouraging (and maintaining) women’s employment, their impact on the situation of women, particularly in the current economic context, remains questionable.

Notes

[2] International Labour Organization. “ILO Modelled Estimates and Projections database (ILOEST )” ILOSTAT. Accessed February 21, 2023.

[3] Labour force survey data of the National Sample Survey Office (NSSO)

[4] Employees’ State Insurance Act, Art. 46; Gazette notification/corrigendum dated 10th of September, 2020/29th of September, 2020

[5] Lequel inclut tout comportement inopportun déterminé par des motifs sexuels, tels que contacts physiques, avances ou demandes à caractère sexuel, remarques connotées, comportement physique, verbal ou non verbal inopportun.

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Indonesia

[Lucas MASCARADE, Associate Lawyer]

Aware that inequalities between men and women generate inefficiencies that reduce economic development and deepen poverty, Indonesia recognizes the need to increase competitiveness and growth through women’s full economic participation.

Making eliminating all discrimination against women and closing the gap in gender inequality a priority, the Indonesian government ratified the Convention on the Elimination of All Forms of Discrimination against Women in 1980.

Understanding gender relations in Indonesia requires however one to go beyond simply analysing women’s position in society, or assuming that women are one homogenous category. Indonesia is a country of many facets, both in terms of its culture and of its people and, in the archipelagic state, where nearly 300 different ethnic groups live side by side, the position of women differs significantly. For example, among the Minangkabau (West Sumatra), the largest matriarchal society in the world, property, land and family name are passed down from mother to daughter, without however emancipating themselves from the traditional gendered division of tasks. Several women have held or are holding high positions of power, such as Megawati Sukarnoputri, as President of the Republic of Indonesia (2001-2004), Sri Mulyani Indrawati, Minister of Finance (2005-2010 and in office since 2016) or Puan Maharani, Speaker of the House of Representatives since 2019.

Over the past 20 years, various social, political and economic forces have shaped relations between genders and how equality is challenged, realised, and restricted in the country. In 2000, a Presidential Instruction on Gender Mainstreaming (INPRES No. 9/2000) was promulgated, requiring all ministries and public agencies, both at the national and local levels, to include the gender issue horizontally in the planning, implementation, monitoring and evaluation of development projects.

In the workplace, Indonesia has been an early adoptee of several policies in favour of certain women’s rights, such as the menstrual leave introduced by Law No. 21/2003 on Labour (“Labour Law”).

Despite the progress made so far by Indonesia, gender disparities still exist. Women are still less represented than men in the workforce (56% of women of working age are currently employed, compared to 83.5% of men). According to UN Women Indonesia, in 2020, the pay gap was 16% for equivalent positions (wider for women with children). A survey conducted by the United Nation Population Fund and Statistics Indonesia show that 33.4 percent of respondents have experienced or have become a victim of a physical and / or sexual violence.

Evolution of the legislation

Gender equality is enshrined in the 1945 constitution. Article 28D.2) of the constitution states that “Every person shall have the right to work and to receive fair and proper remuneration and treatment in employment”, encapsulating the right to work, without discrimination, and the requirement for employers to give their employees fair and equitable remuneration and working conditions in relation to their work.

While the constitution provides a sound foundation for the establishment of equal rights between man and women, Indonesia has passed several laws and regulations to put the principle into practice.

During the recruitment process

The Labor Law sets up the principle of equal opportunities in the labor market. As such, employers cannot discriminate against any person during the recruitment process. In addition, employers cannot request female candidates to provide a pregnancy test during the recruitment process.

During the course of employment

As per, the Labor Law mandates that termination of an employment relationship is prohibitedif it is based on the employee’s ideology, religion, political inclination, ethnic group, race, social group, gender, physical condition, or marital status of the employee.

Equal remuneration for men and women has been reinforced by Government Regulation No. 78 of 2015 concerning Salaries, as amended by GR No. 36 of 2021 (“GR 36/2021“) requiring that men and women receive equal remuneration for equal positions.

Women remain however vulnerable especially during pregnancy. Social protection is still required in the workplace for expectant and nursing mothers to ensure job security and prevent dismissal based on pregnancy or motherhood.

Sexual Harassment

Under Indonesian criminal law, sexual harassment is punishable by up to four years’ imprisonment and a fine of up to 50,000,000 rupiah. These penalties have been strengthened by Law Number 12 of 2022 on Elimination of Sexual Violence. However, these provisions are not specific to the workplace.

Some sectorial provisions have been adopted, such as the Permendikbudristek Number 30 of 2021 and Persejen Number 17 of 2022 promulgated by the Ministry of Education and Culture, which reinforce the original Permendikbud Number 82 of 2015, establishing certain mechanisms to prevent sexual harassment in the tertiary sector and education sector.

In addition, some unions are making up for the lack of specific anti-harassment laws, such as the garment industry unions, which adopted a zero-tolerance policy on sexual violence and harassment in the workplace in 2022.

Special rights

To improve the situation of women in the workplace, the Indonesian government has introduced some special rights.

The first of these is a menstrual leave for the first and second day of menstruation. Introduced in 2003 by the Labor Law, this provision applies to women with incapacitating menstruation.

Thereafter, women can benefit from a three-month maternity leave paid by the employer, including one and a half months of pre-delivery leave, and one and a half months of post-delivery leave.

In addition, the employer must allow nursing women to take nursing times and provide a dedicated space.

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Singapore

[Lisbeth LANVERS SHAH, Counsel]

Singapore secures the third Asia-Pacific spot in the 2023 World Bank’s Women, Business and the Law ranking, with an average of 82.5 out of 100, behind Hong Kong (91.9) and Vietnam (88.1).

Singapore Women’s Charter, enacted in 1961, modernised marital commitment by legislating the equality of the wife with the husband. One the most distinctive legislations promulgated during the ‘modern period’ of Singapore, the impact of the Women’s Charter goes beyond marriage and family law (by according women full equal rights and protection as men) and also impacted economic progress by playing a pivotal part in raising the status of women and supporting their economic participation.

True to its liberal approach, Singapore does not however specifically address gender equality in the workplace and has enacted few binding policies aimed at addressing the various forms of discrimination that can affect women, such as closing the pay gap (according to the Ministry of Manpower (MoM), in 2018 the adjusted pay gap between women and men was 6%, compared to 8.8% in 2022. Unadjusted pay gap was14% in 2020) or ensuring equal opportunities.

While Singapore law does not expressly prohibit an employer from discriminating a female candidate based on her gender, the Tripartite Alliance for Faire and Progressive Employment Practices (“TAFEP”) has formulated a set of tripartite guidelines protecting women.

In 2021, the government published a White Paper on Singapore Women’s Development listing 25 collective initiatives, including bridging the gender gap.

This year, the Tripartite Committee on Workplace Fairness submitted a report containing 20 recommendations for measures to reduce discrimination in the workplace, focusing on 5 main areas: Equal Opportunities in the Workplace, Recognition and Support for Caregivers, Protection against Violence and Harm, Other Support Measures for Women and Mindset Shifts.

Overview of the current situation.

Pregnancy and Motherhood

The government put in place a number of (sometimes relative) measures to support female employees during their pregnancy and maternity.

Part 9 of the Employment Act 1968 regulates the right to maternity leave, which varies from 12 to 16 weeks depending on the nationality of the unborn child. It should be noted that in the case of a non-Singaporean child, the first 8 weeks of maternity leave are paid by the employer without any assistance from the State and the last 4 weeks are not paid (whereas if the unborn child is Singaporean, the 16 weeks are paid by the State).

The Employment Act also prohibits the dismissal of an employee during her maternity leave (but not during the entire pregnancy).

Despite these provisions, pregnancy is still a challenge for women working in Singapore. 70% of workplace discrimination reported by the AWARE Workplace Harassment and Discrimination Advisory since 2019 is related to discrimination against women because of their pregnancy, and in particular, because of changes in the behaviour of some employers who penalize women for their pregnancy.

An employee who is dismissed without cause during her pregnancy will however be able to challenge her dismissal as unfair and discriminatory on the basis of the Tripartite Guidelines on Fair Employment Practices (“Fair Employment Guidelines“) and the Tripartite Guidelines on Wrongful Dismissals.

In August 2021, the government announced that these recommendations would be transposed into law, making them binding.

Harassment and Discrimination

The Protection From Harassment Act 2014 (“POHA“) prohibits and penalizes various forms of harassment. This broad-based regulation also applies to harassment in the workplace. A person found guilty of harassment is liable to a fine of SGD 5,000 and/or imprisonment for six months, with the fine doubling in the event of a repeated offence.

TAFEP non-binding guidelines also provide alternate grievance redress mechanisms. An employee victim of harassment in the workplace can report it to the TAFEP on the basis of the Fair Employment Guidelines. Sometimes described as a lion without teeth (the power of sanction belongs to the MoM), the MoM’s watchdog can nonetheless initiate investigations and prove to be quite efficient in the fight against discrimination and harassment. Even if it’s true that TAFEP is toothless, a toothless tiger is still a fearsome animal [6].

Despite the protection granted by POHA and TAFEP, women remain vulnerable to harassment and discrimination. According to the AWARE group, 54% of people who have experienced harassment in the workplace have chosen not to report it through the various channels available mostly by fear of retaliation.

Conclusion

Although Singapore adopted certain policies and guidelines to improve the situation of women in the workplace, their effectiveness is still limited, either by their non-binding nature or by the consequences attributed to its violation.

Aware of these shortcomings and that women are still being discriminated against, particularly in the workplace, the government is currently discussing the introduction of binding policies to reduce gender inequality and discrimination against women.

Note

[6] Associate Professor Dennis Ong, from Business Law at NTU

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Viêt Nam

[Hoa PHAM, Associate Lawyer]

Ranking among the world’s top 15 countries with the highest rate of working females, Vietnam signed and ratified the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on 29 July 1980 and 17 February 1982 respectively.

With an investment climate for women seen as generally supportive, Vietnam has enacted various measures to promote gender equality and non-discrimination, which are enshrined in the Constitution of 2013.

Vietnam also took concrete policies to ensure gender equality starting with the 2006 Law on Gender Equality. This law sets principles of gender equality in all fields and responsibilities of agencies, organizations, families, and individuals in exercising these principles.

Vietnam has now made it a priority to increase the participation of women in the workplace and achieve gender parity through reforms such as the reformed Labor Code 2019 and adopting the National Strategy on Gender Equality for the 2021-2030 period with the following objectives:

1. increasing the percentage of female paid employees to 50% by 2025 and 60% by 2030;
2. reducing the percentage of female employees in agricultural sectors in total number of female employees to lower than 30% by 2025 and lower than 25% by 2030;
3. increasing the percentage of female directors/owners of enterprises and cooperatives to 27% by 2025 and at least 30% by 2030.

In 2021, the World Economic Forum ranked Vietnam 87th on the Global Gender Gap Index, with 70.1% of its overall gender pay gap closed to date, compared to the global average rate of 68.6%.

How Vietnam is closing its gender gap

The Labor Code 2019 devotes a whole chapter to provisions on female employees and assurance of gender equality by providing the following policies:

• ensuring equality between female and male employees and prevent sexual harassment in the workplace ;
• encouraging employers to enable both female and male employees to work regularly through work arrangement such a flexihours or work from home,.
• creating employment opportunities, improve working conditions, develop occupational skills, provide healthcare, and strengthen the material and spiritual welfare of female employees in order to assist them in developing effectively their vocational capacities and harmoniously combine their working lives with their family lives

Let’s have a closer look.

Gender equality in recruitment

Under the constitution and the Labor Code, sex discrimination is strictly prohibited and employers must implement measures to promote gender equality in recruitment. Recruitment of women is also incentivized by tax reduction available to businesses with a high number of female employees.

Gender equality at the workplace

The Labor Code protects female employees’ right to work on the basis of equality and mandates employers to realize gender equality and implement solutions to promote gender equality in job placement, training, working time, rest time, wages and other regimes. They must also consult female employees or their representatives before deciding on issues related to the rights and interests of women.

During her menstruation period, a female employee shall be entitled to a 30 minute break in every working day.

The Labor Code 2019 reduces the age gap between retirement ages of men and women from 5 to 2 years. The retirement age for female employees will gradually increase to 60 years, instead of the current 55 years.

Of course, discrimination, being a common empirical feature of the labor market in countries around the world, does persist in spite of the policies adopted by the government, notably in terms of wage gap, which however seems to result, for a nontrivial part, from occupational sorting as per a 2018 paper from the World Bank (Gender gap in earnings in Vietnam : why do Vietnamese women work in lower paid occupations).

No motherhood penalty

Employers must not dismiss female employees or unilaterally terminate employment contracts of female employees by reason of marriage, pregnancy, maternity leave, or nursing a child under 12 months of age, except for the circumstances prescribed by laws.

When it is medically confirmed that working may adversely affect an employee’s pregnancy has the right to unilaterally terminate or suspend her employment contract.

Employers must not require a female employee to work at night, work overtime or go on a long distance working trip if (i) she reaches her seventh month of pregnancy; or her sixth month of pregnancy when working in upland, remote, border and island areas or (ii) she is raising a child under 12 months of age, unless otherwise agreed by her.

An employee shall be reinstated to her previous work when she returns to work after the maternity leave without any reduction in her salary, rights and benefits before the leave. In case the previous work is no longer available, the employer must assign another work to the employee with a salary not lower than the salary she received prior to the maternity leave.

The employer must also allow nursing breaks until the child reaches 12 months without any salary reduction.

Sexual harassment

The Labor Code 2019 addresses sexual harassment in the workplace, the handling of complaints, remedies for victims and disciplinary sanctions and fines against perpetrators. According to the USAID/Vietnam COVID-specific gender analysis of 2021, discussion of sexual harassment and other forms of gender-based violence in the workplace remain however taboo in Vietnam and female workers are often not aware of their rights, making sexual harassment more widespread than commonly acknowledged.

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The Supreme Court of Canada has rendered its decision in Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41 giving further clarity on the interplay between arbitration and insolvency law in Canada.

Facts

The case involved the construction of a hydroelectric dam in northeastern British Columbia. Peace River, a partnership created to build the dam, subcontracted part of the work to Petrowest. With construction underway, Petrowest experienced some financial difficulties, and a receivership was ordered to oversee its assets. The receiver filed a civil claim against Peace River to recover funds for work that had allegedly already been completed. In turn, Peace River served a notice of arbitration and applied for a stay of the civil proceeding which the received opposed. 

Judicial History

The chambers judge refused to stay the proceedings, finding that although the arbitration agreements were valid, the Court had the “inherent jurisdiction” to override an arbitration agreement and that, at any rate, the doctrine of paramountcy made the Bankruptcy and Insolvency Act (“BIA”) prevailover the Arbitration Act. The Court of Appeal also refused to stay the proceedings but on the basis that the Receiver had disclaimed the arbitration agreements by bringing a civil action. The Court of Appeal opined that this was possible as a result of the doctrine of separability, which posits that arbitration clauses are self-contained contracts, which are not invalidated if their framework agreement is found to be void ab initio.

Reasons of Justice Côté

All nine judges of the Supreme Court agreed that the stay of proceedings should be refused. Four justices joined Justice Côté’s majority opinion and three joined Justice Jamal’s concurring opinion.

Justice Côté – who had been the sole dissenting justice in another arbitration case heard by the Supreme Court, Uber Technologies Inc. v. Heller, 2020 SCC 16 – offered a novel approach to the issues raised by the case. She ruled that neither inherent jurisdiction, the paramountcy doctrine, or the doctrine of separability should lead to refusal of the stay. Rather, the arbitration agreements were “inoperable” under s. 15(2) of the British Columbia Arbitration Act.

In principle, a court must not rule on the validity of an arbitration agreement and must rather stay the action to let the arbitral tribunal rule on its own jurisdiction pursuant to the doctrine of competence-competence. A court, however, can entertain a challenge to an arbitration agreement if the question before it is a pure question of law or a question of mixed fact and law which requires only a superficial consideration of the evidentiary record. Justice Côté ruled that the interplay between the Arbitration Act and the BIA with respect to the arbitration agreements fell in the latter category.

Justice Côté considered the underlying principles of the Arbitration Act and the BIA. While the two statutes, in some respects, are polar opposites of each other – arbitration places a high value on party autonomy and limited court intervention, while the BIA heavily favours court oversight in a single proceeding – both statutes favour the efficient and expedient resolution of disputes.

Justice Côté then turned to the language of s. 15(2) of the Arbitration Act, which reads “[i]n an application [to stay proceedings] under subsection (1), the court must make an order staying the legal proceedings unless it determines that the arbitration agreement is void, inoperative or incapable of being performed.”

She interpreted that an arbitration agreement is:

• void if it “is ‘intrinsically defective (and therefore void ab initio) according to the usual rules of contract law, including when it is undermined by fraud, undue influence, unconscionability, duress, mistake or misrepresentation”;

• inoperative “if although not void ab initio, [it ‘has] ceased for some reason to have future effect’ or ‘[has] become inapplicable to the parties and their dispute” – in the insolvency context, a stay of proceedings against a debtor may notably make an arbitration agreement inoperative, but it remains the court’s decision whether to refer a dispute to arbitration rather than maintaining centralized judicial oversight;”

• incapable of being performed if “the arbitral process cannot effectively be set in motion because of physical or legal impediment beyond the parties’ control”, which includes “inconsistencies, inherent contradictions, or vagueness in the arbitration agreement that cannot be remedied by interpretation or other contractual techniques”, “the non-availability of an arbitrator specified in the agreement”, “the dissolution or non-existence of the chosen arbitration institution”; or “political or other circumstances at the seat of arbitration rendering arbitration impossible”.

Having reviewed these grounds to deny a stay, Justice Côté ruled that courts have statutory jurisdiction under ss. 183(1) and 243(1)(c) BIA to find arbitration agreements inoperative:

[149] In my view, practicality demands that a court have the ability, in limited circumstances, to decline to enforce an arbitration agreement following a commercial insolvency. Said differently, ss. 243(1)(c) and 183(1) [BIA] provide a statutory basis on which a court may, in certain circumstances, find an arbitration agreement inoperative within the meaning of s. 15(2) of the Arbitration Act.

Justice Côté then proposed a non-exhaustive list of factors, which may bear more or less weight depending on the circumstances, to determine whether an arbitration agreement is inoperative in the future:

[155] […]

• The effect of arbitration on the integrity of the insolvency proceedings. Party autonomy and freedom of contract must be balanced with the need for an orderly and equitable distribution of the debtor’s assets to creditors. An arbitration agreement may therefore be inoperative if it would lead to an arbitral process that would compromise the objective of the insolvency proceedings, namely the orderly and expeditious administration of the debtor’s property. The court should have regard to the role and expertise of the court‑appointed creditor representative, if any, in managing the insolvency proceedings.

• The relative prejudice to the parties from the referral of the dispute to arbitration. The court should override the parties’ agreement to arbitrate their dispute only where the benefit of doing so outweighs the prejudice to them.

• The urgency of resolving the dispute. The court should generally prefer the more expeditious procedure. If the effect of a stay in favour of arbitration would be to postpone the resolution of the dispute and hinder the insolvency proceedings, this militates in favour of a finding of inoperability.

• The applicability of a stay of proceedings under bankruptcy or insolvency law. Bankruptcy or insolvency legislation may impose a stay that precludes any proceedings, including arbitral proceedings, against the debtor. If such a stay applies, the debtor cannot rely on an arbitration agreement to avoid the bankruptcy or insolvency; the agreement becomes inoperative.

• Any other factor the court considers material in the circumstances.

Applying this framework, Justice Côté found that granting a stay of proceedings to Peace River would result in a chaotic arbitral process that would require the Receiver to participate in “at least four different arbitrations involving seven different sets of counterparties”. These arbitrations would necessarily be funded in large part by Petrowest and its affiliates to the detriment of their creditors. Additionally, hearing disputes related to the insolvency in different forums would exacerbate extrajudicial costs and create a serious risk of conflicting decisions. Finally, Justice Côté found that Peace River would suffer no prejudice from proceeding in court as opposed to arbitration and no particular urgency justifies staying the proceedings in favour of arbitration. Consequently, the arbitration agreements are inoperative and the civil claim against Peace River must proceed before the Supreme Court of British Columbia.

Reasons of Justice Jamal

Justice Jamal arrived at similar conclusions as Justice Côté, but on the basis that several provisions of the Receivership Order allowed the Receiver to disclaim the arbitration agreements. In particular, the Receivership Order allowed the Receiver to

• “cease to perform any contracts of the Debtors”;

• “to receive and collect all monies and accounts now owed or hereafter owing to the Debtors and to exercise all remedies of the Debtors in collecting such monies”; and

• “to initiate, prosecute and continue the prosecution of any and all proceedings [with respect to the Property of the Debtors].”

Accordingly, the Receiver disclaimed the arbitration agreement when it filed a civil claim in the Supreme Court of British Columbia.

Justice Côté, in response to Justice Jamal, stated in her reasons that she found the Receivership Order ambiguous and admitted several plausible interpretations. Given this and its ineffectiveness on the outcome of her decision, she left the interpretation of the Order to another day.

Comments and Conclusion

The interplay of insolvency proceedings with arbitral or other parallel proceedings has been the subject of a number of decisions throughout the years. In 2001, the Supreme Court of Canada ruled in Sam Lévy & Associés Inc. v. Azco Mining Inc., 2001 SCC 92 that a creditor who is not a “stranger to the bankruptcy” has the burden of demonstrating “sufficient cause” to have the proceedings fragmented across multiple jurisdictions. In that case, the Supreme Court ruled that a civil claim originally filed in British Columbia pursuant to British Columbia law had to be heard in Quebec, since that is where the single bankruptcy proceeding was taking place. The Quebec court ultimately heard the dispute and applied British Columbia law. More recently, in 2022 Ontario Court of Appeal ruled in Re Mundo Media Ltd., 2022 ONCA 607, which dismissed an appeal from the Ontario Superior Court’s refusal to stay proceedings in favour of an arbitration in New York due to one of the parties being put under receivership and the necessity of resolving different claims under a single proceeding. The Supreme Court’s decision in Peace River confirms this ruling.

Both Justice Côté and Justice Jamal’s opinions, interestingly, ruled on an important albeit less prominent issue to the case: that a receiver constitutes a party to an arbitration agreement and steps in the shoes of the debtor who had agreed to it. Therefore, a receiver in principle is bound by an arbitration agreement between a debtor and a third-party.

A few outstanding issues remain to be clarified by future case law. First, what circumstances, if any, would be appropriate for a court to refer the parties to arbitration pursuant to their agreement in parallel to insolvency proceedings? While Justice Côté cautioned that courts should override these agreements in limited circumstances, in most cases, parallel arbitration proceedings will make extrajudicial costs swell up and deplete a debtor’s assets to the detriment of its creditors. Courts will also typically provide the most efficient forum for dispute resolution in insolvency proceedings since the single supervising judge will be familiar with the entire case and eliminate the risk of contradictory rulings. These advantages are significant and offer powerful arguments to override arbitration agreements.

Second is whether receivership orders – which lawyers tend to reuse almost like standard forms – when they allow a receiver to cease performing any contracts of a debtor, and initiate proceedings with respect to the property of a debtor also extend to arbitration agreements. With Justice Côté’s confirmation that a court has the statutory jurisdiction to rule that an arbitration agreement is inoperative under ss. 183 and 243 BIA, one could ponder whether express provisions allowing receivers to disclaim these agreements will start cropping up in receivership orders across Canada. 

Raising capital is about to get a bit easier for public companies.   

Starting November 21, 2022, public companies will be able to raise funds under a new prospectus exemption recently announced by the Canadian Securities Administrators. The Listed Issuer Financing Exemption under NI 45-106 uses a simplified offering document which avoids the cost and time needed to create a prospectus. 

To use this exemption, companies must fill out a Listed Issuer Financing Document (45-106F19), file a news release, and post the document on its website if it has one. After completing the offering, companies using the Listed Issuer Financing Exemption must file a report of exempt distribution (45-106F1) as if they completed a private placement. 

The requirements to use the Listed Issuer Financing Exemption are: 

• Must be listed on a stock exchange recognized by Canadian Securities regulators, such as the TSX, TSXV, and CSE.
• Must be a reporting issuer for at least 12 months immediately before announcing the offering.
• Have active business operations (not a Capital Pool Company or any other company whose primary assets are cash or its listing.) 
• Be up to date on all disclosure requirements.
• Issue a press release announcing the offering.
• Prepare a Listed Issuer Financing Document (and post it on its website if the issuer has one)’

Limitations of the new Listed Issuer Financing Exemption include: 

• Issuers are limited to raising $5,000,000 or 10% of their market capitalization (up to a maximum of $10,000,000), whichever is greater. 
• In any 12 months, the Listed Issuer Financing Exemption cannot raise the outstanding listed equity securities by more than 50%. 
• The funds raised cannot fund a significant acquisition, a restructuring transaction, or any other transaction requiring the approval of any security holder. 
• Only a listed equity security (i.e. the class of publicly listed shares) or units of listed shares and a warrant convertible into listed shares are eligible for the exemption. 
• Investment funds are not eligible. 

One benefit of the Listed Issuer Financing Exemption is that it provides greater flexibility to issuers. It allows them to decide who can assist them with raising capital. Raises under the exemption do not require an agent or underwriter. As a prospectus-exempt distribution, exempt market dealers can facilitate distributions and help public companies raise funds. 

It’s an exciting opportunity for both public companies and exempt market dealers, enabling them to expand their services into the public markets and giving public companies more choices in selecting partners to help them raise capital. 

Another benefit to investors is that the securities purchased under the Financing Document will not have a four-month hold and will be freely tradeable. Compared to a private placement, the subscription agreement can be simplified, as companies will not have to confirm the investor is eligible for other exemptions, such as being an accredited investor. Investors may value the increased flexibility compared to a private placement, allowing public companies to attract a wider pool of investors to the primary market. 

It is anticipated that TSXV and CSE will apply private placement pricing rules, including allowing the securities to be issued at a discount to the market price, within the rules of the applicable exchange. That makes the Listed Issuer Financing Exemption even more attractive to potential investors making the capital raise easier for companies. 

In contrast to many recently implemented exemptions, the national scope, increased flexibility for both issuers and investors, and the low compliance burden for issuers make the Listed Issuer Financing Exemption an attractive one that is expected to be used frequently by issuers. 

Additional research by Farhan Ahmed

The Alberta government’s recent extensive red tape reduction measures are designed to attract not only investment, but entrepreneurs and innovative businesses to Alberta as part of the government’s Alberta Recovery Plan to grow and diversify the Alberta economy.  Certain of these new legislative amendments are intended to improve the ability of corporations in Alberta to attract equity capital and startups in the tech sector, including the introduction of a prospectus exemption for self-certified Alberta and Saskatchewan investors, a small business public financing prospectus exemption, and perhaps most noticeably, considerable amendments to the Alberta Business Corporation Act (the “ABCA“).

Among the many stresses, decisions and considerations a startup founder must navigate, where to incorporate is not a decision which is typically at the top of the list. However, this is an early decision that can have lasting impacts, particularly when startups begin seeking outside equity capital. 

The Alberta Business Corporations Amendment Act (formerly Bill 84) came into force on May 31, 2022. The amendments modernize the ABCA, reduce administrative burdens for Alberta corporations, and aim to attract new business and investment by clarifying the protections and responsibilities of directors.

A goal of the amendments was to make it easier for corporations to attract venture and private equity capital.  One feature of the amendments is that now corporations have the ability to waive any interest or opportunity to participate in a specified business opportunity available to directors and officers.  The waiver mechanism is designed to be beneficial to venture capitalists and institutional investors who focus their investments in specific industries and sectors and who nominate representatives and directors who sit on multiple boards of companies involved in the same industry.  However, these waivers will equally benefit other industries, including Alberta’s energy sector, a capital-intensive sector which has historically attracted significant investment from private equity and other institutional investors who, as part of their investment strategy, contribute value to companies by nominating representatives and experienced directors who sit on multiple boards of companies involved in the same industry.

Other changes benefitting directors and officers include: (i) the ability for directors to vote on contracts or transactions in which they have a material interest and where the director’s and the corporation’s interests align beneficially for the corporation, (ii) expansion of the good faith defense, which provides that directors will not be liable for breach of their duty of care if they can demonstrate that they relied in good faith on an opinion or report of a person, including professional services providers such as lawyers, accountants, and engineers, and now as a result of the amendment, employees of the corporation, and (iii) increased protections for indemnification from the corporation by expanding the circumstances in which a director and officer may be indemnified.

With respect to reducing administrative burdens, the key amendments for private corporations (non reporting issuers), include reducing the required approval threshold to two-thirds of the voting shares for both written shareholder resolutions and resolutions to dispense with the appointment of auditors.  Previously, to be effective, a written resolution would need to be signed by all shareholders entitled to vote on the matter being presented, and dispensing with the appointment of auditors required unanimous approval of the corporation’s shareholders, including non-voting shareholders, regardless of whether the approval was sought by written resolution or at a meeting of shareholders.  In addition, the notice period for shareholder meetings has been lowered to a minimum of 7 days. These amendments will allow early-stage startups and other private corporations to conduct matters of corporate business more efficiently and conserve resources, where appropriate, by allowing them to forego the costs of organizing shareholder meetings and completing financial statement audits.

The objective of attracting investment capital and tech startups is not unique to Alberta; many municipal, State and Provincial policymakers currently share the same objective.  However, with the enactment of the amendments, the ABCA now provides certain flexibility and advantages which are unique among Canadian corporate jurisdictions, and which differentiate the ABCA from the legislation of other provinces which have historically been relatively uniform.  Take for example the statutory corporate opportunities waiver, the first of its kind to be introduced in Canada.  Similar waivers exist in certain United States jurisdictions, including Delaware where more than half of the publicly traded companies in the United States are incorporated.  It may be a stretch to think that Alberta will become the ‘Canadian Delaware’ as a result of the ABCA amendments; Delaware boasts greater privacy protections and an established court system with extensively established precedent, and other Canadian jurisdictions may soon follow Alberta’s direction.  At present however, Canadian founders should consider the advantages of incorporating their new business in Alberta, regardless of where the business is or will be headquartered.

Quebec Court of Appeal rules that ten-year prescription applies to foreign arbitral awards in Quebec: what implications does this have for international arbitration in Canada? ?Find out by reading this article by Laurent Crépeau, in The Lawyer’s Daily