Publication
Vietnam: Competition Law Fact Sheet
Overview of the main provisions of the Competition Law, and discussion of the enforcement regime and recent enforcement trends.
Canada | Publication | June 20, 2023
On May 30, the Competition Bureau released its final wage-fixing and no-poaching enforcement guidelines (the Guidelines). The Guidelines outline the Competition Bureau’s enforcement approach to the new criminal provisions in the Competition Act (Act), which will come into effect on June 23, 2023.
The Bureau’s Guidelines were published following a public consultation process that took place earlier this year. For more information, please see our earlier update on the consultation and draft guidance.
As of June 23, 2023, new Section 45(1.1) of the Act will criminalize agreements or arrangements between unaffiliated employers:
Employers who participate in illegal wage-fixing or no-poach agreements risk significant criminal penalties, including 14 years in jail or fines at the discretion of the court, or both. Employers also face potential civil lawsuits for damages under the Act.
With the new criminal wage-fixing and no-poach provisions coming into effect later this month, the Guidelines provide some welcome insight into the Bureau’s enforcement approach towards wage-fixing and no-poach agreements:
Although the Guidelines’ text was revised following the public consultation earlier this year, the substance remains largely the same. The Guidelines continue to allow the Bureau broad enforcement discretion and leave open key questions such as the treatment of agreements between employers that were entered into before June 23, 2023.
Going forward, wage-fixing and reciprocal no-poach agreements and clauses in commercial agreements must be carefully drafted. To ensure these types of agreements comply with the new provisions and can benefit from the ancillary restraints defence, they should be carefully considered to ensure they are reasonably necessary to the larger agreement or arrangement to which they are related. Although the Guidelines provide some guidance to parties regarding the Bureau’s enforcement approach, they are not legally binding and the burden is ultimately on the parties to demonstrate – with evidence – that the restraint can shelter under this defence. Given the risk of criminal liability, employers should seek legal advice on applying the defence in the particular circumstances of each agreement.
Agreements that aren’t caught by the criminal provisions may still be examined by the Bureau under the civil provisions of the Act where there is a substantial lessening or prevention of competition in a market.
Section 4(c) of the Act contains an exception for agreements between employers that pertain to collective bargaining with their employees in respect of salary or wages and terms or conditions of employment.
The Guidance suggests that arrangements between franchisees to recoup training costs related to “poached” employees would not normally be considered problematic by the Bureau under the criminal provisions of the Act.
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Overview of the main provisions of the Competition Law, and discussion of the enforcement regime and recent enforcement trends.
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The European Court of Human Rights (ECtHR or the Court) recently ruled in Verein KlimaSeniorinnen Schweiz & Ors v. Switzerland (Application No. 53600/20) that Switzerland had breached the European Convention of Human Rights (the Convention) by not taking sufficient action against climate change. In particular, it found a breach of the right to respect for private and family life contained in Article 8 of the Convention, based on Switzerland’s failure to mitigate the impact of climate change on the lives, health, well-being and quality of life of its citizens. It also ruled that Switzerland had breached the right to a fair trial in terms of Article 6, in that the domestic courts failed to examine the merits of the applicants’ complaints, including the scientific evidence. In this article we consider the key features of this landmark judgment, which has wide ramifications for Member States of the Convention.
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