Essay About Contracts Of Employment And Workplace Law

Labour Law Today
Labour Law: Lecture:  Notes to supplement GroganMain Reference: Grogan “Workplace Law”  Chapter 1ORIGINS (pp 2- 3)Common Law governing contracts of employment:Based on Roman LawUnskilled and even skilled labour normally performed by slaves in Roman timesSince a slave was a “thing” in RL, there was no contract with the slaveProfessional services eg by doctors, lawyers etc governed by contract of mandateHence no need for the development of a contract specifically adapted to employment requirementsThe closest analogue in RL was the contract of  letting and hiringTherefore the general principles of the contract of letting and hiring apply to the common-law contract of employmentStatus of common LawCommon Law prevails unless modified by statute or the Constitution (which is a statute, albeit a special kind)Statutory changes (either express or implied) do not affect that part of the common law to which they do not applyHence that part of the common law which is not affected by statute remains in forceMuch of the common law has been changed, and is governed by statuteNevertheless, some parts of the Common Law concerning Labour Law have not been changed by statute and remain in force, hence the need to examine itThe position in Roman LawContract of employment based on RL contract of  Letting and hiringCalled locatio Conductio in RL3 kinds LC Rei, LC Operis, LC Operarum  Locatio Conductio ReiMeans “the letting and hiring of a thing”Modern equivalent is the contract of leaseInvolves the temporary use & enjoyment of a thing for a period of time in exchange for payment (rent) without transfer of ownershipEg house, car, horse, academic gown, book etcPayment distinguishes this from “Borrowing” The person who allows the other to use the thing is the lessor and the one who pays to use it is the lesseeIn RL a slave was a “thing” who was owned by his/her “Master”Slaves could be bought and soldSince the humanity (“Legal Personality”, humanness, human rights) of a slave was not recognized, the slave was a captive of the master who in early RL had absolute power over all aspects of the slave’s life including the power of life and death.If the master wished services to be performed by his own slave he simply ordered/forced the slave to do it. There was no question of paying the slaveIf a third party wished to make use of the slave’s services he had to obtain the agreement of the master on the latter’s terms and conditionsThis would include any agreement to pay for the slave’s servicesEven if the slave was paid, any such money would automatically belong to the master (who could, if he wished, allow the slave to keep some or all of it)This, too, in RL was a contract of locatio conductio rei, not a contract of employmentIt was between the master of the slave and the third party, not between the slave and the third party – the slave was essentially doing the master’s biddingSlavery was abolished during the 1700’s to 1800’s and since that time has not formed part of our common lawForced labour must be distinguished from slavery since the former does not involve ownership of a person as a “thing” (although there are some similarities)Forced Labour is also not a contract of employment as the labourer has not agreed to it (a contract is based on the agreement of the parties to it) However, some pre-1994 South African statutes visiting criminal penalties on those (usually African migrant Labourers) who breached written contracts of employment could be regarded as amounting to forced labour. This is a clear departure from the common law.This should not be confused with the civil liability which may result from the breach of a contract, whether of employment or notLocatio conductio operisMeans the letting and hiring of a piece of workThe “lessor” was the one who wanted the work doneThe idea was that the worker (“lessee”) would produce a finished piece of workThe “lessor’s” only interest was in the finished workThe time & manner in which the work was to be done was at the disretion of the “lessee” whose only obligation, in the absence of specific contractual terms to the contrary, was to exercise reasonable skill and diligence and to complete it within a reasonable time.Today, this kind of “lessee” is known as an independent contractor Motor technicians, plumbers and building contractors who contract with the public for their own account are common examples of independent contractorsRemember that technicians, plumbers and masons can also be employees where they work for a business which concludes the contract.(see below)Such persons are not employees of the “lessor”  who wants the work done, but of the business which enters into the contractBecause of the almost infinite variety of terms which may be incorporated into a contract, it is sometimes very difficult to distinguish between independent contractors and employeesThe Courts have always sought the real nature of the contract in such cases, rather than blindly following the name given to it by one or other of the parties (see later in the course)Independent contractors are not employeesLocatio Conductio operarumMeans the letting and hiring of a person’s servicesThe services of the “lessor” (person providing the services) agreed to place his/her services at the disposal of the  “lessee” for a certain period in exchange for remunerationThe services were rendered under the control of the “lessee” who was entitled to instruct the “lessor” what services to perform, and when and where and howThis is equivalent to the common-law contract of employment and “lessee” and “lessor” are equivalent to employer and employee respectivelyIn early RL this contract only applied to menial workers (which included sculptors and artistic painters!). Professionals were not allowed to charge for their work (they were supposed to belong to the wealthy classes). In later RL they were allowed to claim an honorarium for their services. This has now fallen away and is no longer part of our common lawCommon-law contracts of employment have also been influenced by English law which terms them “contracts of service” with the parties to the contract being called “master” and “servant” respectively NB Importance of distinguishing between the three kinds of letting and hiring“Labour Law” involves extensive statutory modification of the common lawWith limited exceptions, “Labour Law” only applies where there is a contract of employment (locatio conductio operarum) or a statutory “employment relationship” or some aspect connected with it. Therefore in determining whether labour law is applicable to a particular situation, one must first determine whether there is a contract of employment or some other kind of contractIt is particularly important to determine whether the contract is one of work with an independent contractor (LC operis) or employment (LC operarum) since they can be very similar to one another and easily confusedFurthermore, labour legislation specifically excludes independent contractors from its sphere of applicationThe first step, therefore, is to determine whether a common-law contract of employment or a statutory employment relationship exists or ; if so then the labour legislation and common law relating to labour law is applicable. If a contract of employment does not exist, then, subject to statute, none of the labour legislation or common law is applicable. The laws applicable will belong to some other branch of lawSHORTCOMINGS OF THE COMMON LAW (Grogan pp3-4)Freedom of contract and contracts of employment under the common Law : Unequal bargaining powerS A law allows parties to bind themselves contractually by serious agreement to any undertaking whatsoever provided that it is not impossible, illegal, contra bonos mores  or contrary to public policy- see eg Pearce v Brookes  cited in Grogan p47 There are no “pigeonholes” into which a contract must fit. The contract might be identified ex post facto as being a specific kind of contract eg sale, lease, suretyship etc. which has specific rules.If it cannot be so “pigeonholed”, then it will not be regarded as null and void, but will rather be dealt with according to the general principles of contract This is the concept of freedom of contract which is based on the Roman-law maxim: “pacta servanda sunt” meaning that undertakings must be honoured , or that one must perform what one has agreed to do. This is enforced by the courts.In the context of the contract of employment this means that whatever the employee has agreed to, he/she is bound by. (the same applies to the employer)According to common law, it does not matter how low the wage or how long the working hours etc, if the employee has agreed, s/he is bound thereby.In situations where there is an oversupply of job-seekers (which is usually the case – especially in S A in unskilled and semi-skilled positions – the bulk of the work-force) this puts the employer in an inordinately powerful bargaining positionExploitation of labour could arise under the common lawThe employer may offer very poor or stringent working conditions and adopt a “take it or leave it” approach on the assumption that there are many others who want the particular jobThe job-seeker may then be confronted with the option of accepting unsatisfactory working conditions or starving herself and her dependants as she does not have enough bargaining power to influence the employer’s conditions offeredThe common law offers no way to combat this situation as the employer may say “I won’t agree to what the job-seeker wants and s/he won’t agree to my conditions, therefore there is no contract, and hence no job”Unequal bargaining power of the workforce collectively