Employment contract
Encyclopedia
A contract of employment is a category of contract
used in labour law
to attribute right and responsibilities between parties to a bargain.
On the one end stands an "employee" who is "employed" by an "employer". It has arisen out of the old master-servant law, used before the 20th century. Put generally, the contract of employment denotes a relationship of economic dependence and social subordination. In the words of the influential labour lawyer Sir Otto Kahn-Freund
,
, and so on. The assumption is that genuinely self employed people should be able to look after their own affairs, and therefore work they do for others should not carry with it an obligation to look after these rights.
In Roman law
the equivalent dichotomy was that between locatio conductio operarum and locatio conductio operis (lit. a hiring contract of services and by services).
The terminology is complicated by the use of many other sorts of contracts involving one person doing work for another. Instead of being considered an "employee", the individual could be considered a "worker" (which could mean less employment legislation protection) or as having an "employment relationship" (which could mean protection somewhere in between) or a "professional" or a "dependent entrepreneur", and so on. Different countries will take more or less sophisticated, or complicated approaches to the question.
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
used in labour law
Labour law
Labour law is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees...
to attribute right and responsibilities between parties to a bargain.
On the one end stands an "employee" who is "employed" by an "employer". It has arisen out of the old master-servant law, used before the 20th century. Put generally, the contract of employment denotes a relationship of economic dependence and social subordination. In the words of the influential labour lawyer Sir Otto Kahn-Freund
Otto Kahn-Freund
Sir Otto Kahn-Freund was professor of comparative law, University of Oxford, and a path breaking scholar in labour law.-Biography:...
,
"the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by the indispensable figment of the legal mind known as the 'contract of employment'. The main object of labour law has been, and... will always be a countervailing force to counteract the inequality of bargaining powerInequality of bargaining powerInequality of bargaining power is a concept used in social sciences and humanities, particularly law and economics to denote the situation where freedom of contract ceases to be real and markets fail....
which is inherent and must be inherent in the employment relationship."
Terminology
A contract of employment usually defined to mean the same as a "contract of service". A contract of service has historically been distinguished from a "contract for services", the expression altered to imply the dividing line between a person who is "employed" and someone who is "self employed". The purpose of the dividing line is to attribute rights to some kinds of people who work for others. This could be the right to a minimum wage, holiday pay, sick leave, fair dismissal, a written statement of the contract, the right to organize in a unionTrade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
, and so on. The assumption is that genuinely self employed people should be able to look after their own affairs, and therefore work they do for others should not carry with it an obligation to look after these rights.
In Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
the equivalent dichotomy was that between locatio conductio operarum and locatio conductio operis (lit. a hiring contract of services and by services).
The terminology is complicated by the use of many other sorts of contracts involving one person doing work for another. Instead of being considered an "employee", the individual could be considered a "worker" (which could mean less employment legislation protection) or as having an "employment relationship" (which could mean protection somewhere in between) or a "professional" or a "dependent entrepreneur", and so on. Different countries will take more or less sophisticated, or complicated approaches to the question.
See also
- Collective bargainingCollective bargainingCollective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...
- Job descriptionJob descriptionA job description is a list that a person might use for general tasks, or functions, and responsibilities of a position. It may often include to whom the position reports, specifications such as the qualifications or skills needed by the person in the job, or a salary range...
- Labour lawLabour lawLabour law is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees...
- Labor union
- Work for hireWork for hireA work made for hire is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work...
- First Employment ContractFirst Employment ContractThe contrat première embauche was a new form of employment contract pushed in spring 2006 in France by Prime Minister Dominique de Villepin...
and New Employment Contract in France - Master and Servant ActMaster and Servant ActMaster and Servant Acts or Masters and Servants Acts were laws designed to regulate relations between employers and employees during the 18th and 19th centuries. An 1823 United Kingdom Act described its purpose as "the better regulations of servants, labourers and work people"...
- Adair v. United StatesAdair v. United StatesAdair v. United States, , is a United States Supreme Court case which upheld "yellow-dog" contracts that forbade workers from joining labor unions. The decision reaffirmed the doctrine of freedom of contract which was first recognized by the Court in Allgeyer v. Louisiana...
, 209 U.S. 161, 175 (1908) "the employer and the employee have equality of right and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in our free land.”