Employment Law Outline Notes PDF

Employment Law Outline Notes Part One Introduction to Employment Law 1. The Employment Contract & Relationship Employment: the Master-Servant relationship - the c...

Employment Law Outline Notes Part One Introduction to Employment Law 1. The Employment Contract & Relationship Employment: the Master-Servant relationship - the contract of service (where the person’s service, perhaps in a certain field, is put at the disposal of the master’s direction). Contra: Contracts with an independent contractor - a contract for services: to supply specified services (e.g. manual labour, tutoring). 2. Tests of a ‘Contract of service’ The control test - Yewen v Noakes, Bramwell LJ (QBD, 1881), “a servant is a person subject to the command of his master as to the manner in which he shall do his work”. This refers to the right to control the employee’s work (Zuijs v Wirth s Bros. Pty Ltd, H Ct Australia, 1955, regarding a circus owner and a trapeze artist held to be an employee) though reliance is placed in the employee’s skill and knowledge to decide how to actually execute it. Mersey Docks and Harbour Board v Coggin & Griffith (Liverpool) Ltd (HL 1946) regarding a hirer’s responsibility for the crane operator’s negligence: The proper test is whether or not the hirer had authority to control the manner of execution of the act in question. If such authority did exist, it does not matter whether the authority was exercised or not. The integral part of organization test - Stevenson Jordan v MacDonald & Evans (UK CA 1952), Denning LJ, “under a contract of service a man is employed as part of the business; whereas, under a contract for service, his work, although done for the business, is not integrated into it but is accessory to it.” The ordinary person test - Where the majority judges found that a hospital had a right of control over a surgeon in the OT even though they could not professionally control his actions there, sufficient to make him it employee in Cassidy v Ministry of Health (UK CA, 1951), Somerville LJ suggested that tht test should be to ask: “Was this a contract of service within the meaning which an ordinary person would give those words?” In the US, the Economic Reality test: United States v Silk (1947, 331 U.S. 704) - whether owner-driver of trucks were employees or independent contractors: “They are small business men… It is the total situation, including the risk undertaken, the control exercised, the opportunity for profit from sound management that marks these owner-drivers as independent contractors.” Business on own account: Market Investigations v Minister of Social Security, Cooke J: “The fundamental test is this: ‘Is the person who has engaged himself to perform Employment Law (BH3301/BH3302) 1 For use in study in this course only: not to be reproduced or disseminated in any form for any other purpose without the author’s express consent.  the services performing them in a business on his own account? ‘ If the answer to that question is ‘yes’, then the contract is a contract for service. If the answer is ‘no’, then the contract is a contract of service”. This test, along with other factors, was cited with approval by the Privy Council in Lee Ting Sang v Chung Chi-Keung (1990 PC) where a mason working for a sub-contractor paid either on a daily or piece rate, who sometimes worked for others but gave priority to his main sub- contractor was held to be the latter’s employee. The multiple factors test - Ready Mixed Concrete (South East) Ltd v Minister of Pensions and national Insurance (1968, QB), MacKenna J - the person is an employee if he fulfills three conditions: (1) He agrees in return for a wage or other remuneration to provide his own work and skill in service for his employer (the mutuality of obligations element); (2) He agrees that his service will be subject to the other’s control sufficient to make the other master (the right of control element); and (3) The other provisions are consistent with it being a contract of service (the other factors element). The contract of service in Singapore - Kureoka Enterprises Pte Ltd CPF Board (Sing. H Ct, 1992, Chan Sek Keong J): free-lance lounge hostesses at a karaoke bar who provided “congenial companionship and conversation” to drinking guests who had to pay for the hostesses’ time at hourly rates prescribed by the bar was held to be the bar’s employees entitled to CPF contributions. This was even though the free-lance hostesses were free to decide whether to come in for work or not. They each signed a “Letter of Appointment” in which the bar was labelled them “employees” but this was not decisive. Other factors included: the hostesses rendered their own personal services for the bar; the bar had sufficient control as it determined the hourly rates, and the hostesses could not decide which guest to entertain, and the bar’s management could dismiss for misconduct or terminate their general service, and though the hostesses could decide not to show up, in practice they had to give reasons; and the hostesses’ services were an integral part of the bar’s business. This would appear to be the multiple factors test incorporating all the other elements under other consistent provisions. Contra: In PP v Jurong Country Club (SGHC 209) See Kee Oon J held on appeal (reversing the District Court) that a gym instructor who had been employed by a club for 8 years, was an independent contractor after he had excepted a change the terms of the contract converting him to independent contractor, after applying the multiple factors test but taking a qualitative approach holding that the presence of all the factors of control, personal service and mutuality are not necessarily conclusive. This was even though, the club supplied the gym equipment, the instructor used a punch card and to log the hours of work which were fixed by the contract and the club had the absolute discretion to alter them. These were treated as neutral, not displacing the apparent intention of the parties to treat him as an independent contractor, as was the fact that he could design his personal training programmes and could take on non-club members as his personal clients at the gym but only after working hours. Here, we see a strong deference given to the label the parties chose to give to the contract. Employment Law (BH3301/BH3302) 2 For use in study in this course only: not to be reproduced or disseminated in any form for any other purpose without the author’s express consent.  In BNM v NUS (SGCA 2014) the Court of Appeal opined in dicta that the control test is not the only test and is not even necessarily the decisive factor; other factors which “in our view are equally material include the fact Hydro [the contactor that provided the lifeguards whose negligence were in issue in a vicarious liability claim] undertook the financial risks of running its business, owned its own assets and personnel, selected the lifeguards for deployment at the NUS pool… retained the profits from its business and also took out its own public liability insurance.” The Court of Appeal opined that had it been necessary for us to decide the question of vicarious liability, it would have found that it was Hydro that had control over the lifeguards and not NUS. 3. The Uses of the Concept of ‘Contract of Service’ and Variations in the Definition of Employment in Singapore Law Employment Act 1968 (How to read the Employment Act.) a. “employee” (s 2(1)): means a person who works “under a contract of service with an employer and includes a workman”. (And officers/employees of the Govt. in a category, class or description declared by the President to be employees for the purposes of the Act or provision thereof.) But does not include - (a) any seafarer; (b) any domestic worker; (c) deleted (this provision used to specify an exclusion for persons in a managerial or executive position earning above a certain cap); (d) any person in a class whom the Minister of Manpower declares not to be an employee for the purpose of this Act. “employer” (s 2(1)): means “any person who employs another person under a contract of service”. And “employer” includes the Govt., any statutory authority, duly authorized agent or manager of the employer; and the person who owns or is carrying on or for the time being responsible for the management of the profession, business, trade or work in which the employee is engaged. “female employee” (for maternity provisions, e.g. ss 77 - 84A EA ). b. “workman” (s 2(1)): (a) Person skilled or unskilled in a contract of service with an employer pursuant to which he or she is engaged in any manual labour, including artisan or apprentice, but excluding any seafarer or domestic worker. (b) Person, other than clerical staff, employed in the operation or maintenance of mechanically propelled vehicles used for the transport of passengers for hire or for commercial purposes. (c) Any person employed partly for manual labour and partly for supervising in person any workman, provided he is deemed as a workman unless it can be established the time he is required to work as a workman “has on no occasion amounted to or exceeded one-half of the total time of his work in a salary period’. (I.e. he is Employment Law (BH3301/BH3302) 3 For use in study in this course only: not to be reproduced or disseminated in any form for any other purpose without the author’s express consent.  not deemed a “workman” if his workman portion in a salary period never exceeds half of any of those periods.) (d) First Schedule person: cleaners, construction workers, labourers, machine operators and assemblers, metal and machinery workers, train, bus, lorry and van drivers, train and bus inspectors; and all workmen employed on piece rates in the employer’s premises. (e) Person declared by the Minister of Manpower in the Gazette to be a workman. c. Restrictions for Part 4 EA (s 35): Applies to i. Workmen with salary not exceeding $4500 a month; and ii. Employees (other than workman, or persons in managerial or executive position) with salary not exceeding $2600 a month (Salary caps here exclude OT, bonuses, productivity incentive, AWS, allowances.) Part IV applies to rest days, hours of work, rules on OT pay and limitations on retirement and retrenchment benefits. 4. ‘Employees’ under Other Employment Statutes and Laws For Retirement & Protection Against Premature Retirement Retirement and Re-Employment Act 1993: Section 2(1): “employee” means a “person who has entered into or works under a contract of service”; and “contract of service” means “any agreement, whether in writing or oral, express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his or her employer as an employee”. Provides remedies for a dismissal on ground of age of “any employee” who is below the “specified age” (s 8(1)); and this specified age is the higher the following: (a) the minimum retirement age prescribed by the Minister (currently 63); or (b) the retirement age stipulated in the contract of service (s 2(1)). On Employment Safety Workplace Safety and Health Act 2006 Section 6(1): “employee” means “any person employed by an employer to do any work under a contract of service”; and see definition of “contract of service” in s 4(1), which includes a contract of apprenticeship. + A “volunteer” who does work for another with that person’s knowledge or consent on an ongoing and regular basis that is in connection with any trade, business, profession or undertaking carried on by that other person - s 6(2). + Person receiving on the job training or gaining work experience, including under a rehabilitation scheme - s 6(3). Employment Law (BH3301/BH3302) 4 For use in study in this course only: not to be reproduced or disseminated in any form for any other purpose without the author’s express consent. And “employer” means a person who, in the course of the person’s trade, business, profession or undertaking, employs any person to do any work under a contract of service”. + The “occupier” of a “factory” is deemed the employer of any person who carries on work in a factory unless that occupier proves that he/she/it is not the employer of the person - s 6(5). Work Injury Compensation Act 2019 Which provides for employer compensation for personal injury caused to an employee by an accident arising out of and in the course of an employee’s employment (s 7(1)); and employers’ liability to compensate employees for certain diseases contracted as specified in the Second Schedule (s 10). Section 3(1): “employee” means “an individual who has entered into or works under a contract of service with an employer” + employee of the Govt. in a class or description declared to be employees by the President for the purpose of this Act. But (minus) a - Excludes Third Schedule Persons: members of the SAF, any officer of the SPF, SCDF, CNB or SPS, and any domestic worker. For Social Security Central Provident Fund Act 1953 Which provides for employer obligation to pay contributions to the employee’s CPF (s 7(1)). Section 2(1): “employee” means any person who is employed in Singapore by an employer (otherwise than as a master, seaman or an apprentice in any vessel - subject to certain exceptions for which see definition at para. (b)); and “employed” means “engaged under a contract of service or apprenticeship” + “or in an employment in respect of which contributions are payable under regulations made under section 77(1)”. Under the Common Law Employers are vicariously liable for torts by employees acting in the course of their employment. Such “employees” are persons employed under a contract of service. 5. The Nature of the Employment Relationship Essence This is a cooperative relationship of mutual trust and confidence in which one party agrees to put his or her service at the disposal of the other within certain specified conditions, and the other agrees to employ and remunerate the former for his or her service, in which both undertake: not to take “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the Employment Law (BH3301/BH3302) 5 For use in study in this course only: not to be reproduced or disseminated in any form for any other purpose without the author’s express consent. relationship of confidence and trust between employer and employee” - Malik & Mahmud v Bank of Credit and Commerce International S.A. (HL 1998). Contract vs Status: Is the of Employment Entirely Determined by Agreement? Employment Act s 8 establishes minimum ‘floor-rights’: conditions of service in the contract of service are “illegal and void to the extent they are so less favourable” to the employee than the Act. Nature The contract of service creates, therefore, the employment relationship between employer and employee. This relationship is not wholly governed by the contract creating because the terms of the relationship, the conditions of service, are partly provided by the contract by express or implied terms, and partly by the operation of statute - particularly the Employment Act, but also other statute like the Retirement and Re-Employment Act. These are not wholly separate rules because the operation of one can affect the operation of the other. For example, in the absence of express provisions, a contract of service can be terminated by the notice periods provided in the Employment Act - see s 10(3) EA; on the other hand, the provision in the contract of a notice period will exclude the Act’s notice periods from operating - see s 10(2) EA. And even in a case where a contract of service is terminated by contractual notice, the employee may seek the statutory remedy of reinstatement if there is found to be no just cause or excuse for the dismissal - s 14(2) EA. If such remedy is given, the contractual relations is restored. So, we have a relationship of employment governed by interlocking contractual and statutory rights. 6. Consequences of Non-inclusion as ‘Employees Non-protection of Independent Contractors a. CPF - voluntary contribution only (lookout for changes for platform workers) b. No Work Injury Compensation (lookout for changes for platform workers) c. Non-coverage by Retirement and Re-employment Act d. Non-protection as ‘employees’ under the Workplace Safety and Health Act (though there may be protection in other capacity) e. No ‘floor-rights’ under the Employment Act Are the following truly ‘Independent Contractors’? Taxi drivers for hail ride and call companies Platform delivery riders on phone app delivery services Piece rate workers from home 7. The Making of an Employment Contract Normal Contract Law Requirements Apply for Formation of Contract a. Agreement between parties must be reached (Offer & Acceptance) b. Intention to create legal relations – present in normal commercial employment. c. Consideration: the element of exchange for value where the “consideration” is the price given for the promise to be performed by Employment Law (BH3301/BH3302) 6 For use in study in this course only: not to be reproduced or disseminated in any form for any other purpose without the author’s express consent.  the other side – in employment this would be the employee’s promise to work (to put his service at the disposal of the employer at specified times and within understood conditions) given in exchange for the employer’s promise to remunerate the employee (usually in the form of wage, but this may include payment in the form of options etc.). d. Writing: not usually required. But it is not enforceable where it is not to be performed within one year of the making thereof, unless the agreement, or a memorandum thereof, is in writing and signed by the party against whom the contract is to be enforced – s 6 Civil Law Act. e. For contracts of service entered into from 1 April 2016 where the employment is for the “prescribed minimum term (any continuous period of 14 days or more), the employer must furnish the employee with a written record (which must be accurate and complete) stating the Key employment Terms (KETs) within 14 days of the start of the employment. (The requirement of writing here is satisfied if it is or if it is published by the employer on a website for dissemination to the employees and is accessible by the employees.) See s 95A Employment Act. Wilful refusal or neglect without lawful excuse to furnish the particulars within the allowed time is an offence: s 101(a) Employment Act. See, for the KETs: https://www.mom.gov.sg/employment- practices/contract-of-service/key-employment-terms For full details see: Employment (Employment Records, Key employment Terms and Payslips) Regulation 2016, Second Schedule. Notable points a. Commencement: The commencement of the employment relation (and the main primary obligations) may be after the making of the contract: i.e. a contract may be made on 1 Dec. with employment to commence on the 1 Jan. following. Though the employee is not obliged to work in December, there can already be a contract in which the employee is obliged to be ready and willing to commence work on the start date. This raises the question of whether there is such an agreement reached or if the understanding is that the prospective employee is only expected to show up on the start date whereupon the contract is concluded on that date by mutual signing of the contract document. b. Anticipatory Breach: On the above will turn the question of whether the prospective employee can be sued for anticipatory breach of contract by changing his mind to take up another job offer in the meanwhile and communicating that intention not to start with the first employer. Or the question of whether the employer is equally in anticipatory breach by communicating a withdrawal of the employment offer. c. Probation: Often the employment contract specifies a probation period: this is still an employment contract for the probation period but the employment is tentative and is specified to lapse after that period has expired unless the employer signifies that the employment is confirmed, usually in writing. It will be seen that in many of the Employment Act’s provisions regarding benefits (e.g. paid maternity leave or paid medical leave) those rights do not accrue until the various specified periods of service have been served. Employment Law (BH3301/BH3302) 7 For use in study in this course only: not to be reproduced or disseminated in any form for any other purpose without the author’s express consent.