Labor lecture note; Abera G. G.pdf

Employment law lecture note Under this title, arts. 2512-2604 are relevant for relationship in this sector. The Civil Code has the modality of state intervention as it declared the minimum working conditions. First of all, it provided for employment stability (no termination without good cause). Ar...

Employment law lecture note Under this title, arts. 2512-2604 are relevant for relationship in this sector. The Civil Code has the modality of state intervention as it declared the minimum working conditions. First of all, it provided for employment stability (no termination without good cause). Art. 2573 of the code provides: “The employee shall be entitled to fair compensation where the employer terminates a contract or refuses to renew it without good cause justifying fully this decision”. The “faire compensation” is 6 months wage in the English while it is 3 months in the Amharic version. The civil code also introduced the concept of “paid leave”. Essentially, ‘paid leave’ is a prescribed situation in which the employee is paid a wage without rendering service. One of these paid leaves is the annual leave, which has been provided under arts. 2561 and 2562 of the Code. It also provides for maternity leave under art. 2566. Lecture 3-Thirsday, July 15, 2021. Last time, we where trying to see the basic legal elements introduced by the Civil code that brought a meaningful change for the employment relation. The other element that the code brought is sick leave (2542). In terms of safety and healthy working condition, during the freedom of contract, the rule was voluntary assumption of risk in whichthe employee was the insurer ofherself. But, the civil code passes the responsibility to the employer at two stages; prevention and remedial (Section 4 of this title (2548-2559). At the level of prevention, Art. 2548 provides that the employer is duty bound to take all necessary precautions and provide equipments to the employee. Art. 2548. — Principle. (1) The employer shall take such measures as are required by the special circumstances of the work to safeguard the life, physical integrity, health and moral standing of the employee. (2) He shall in particular arrange the premises and keep up the equipment in his undertaking with this object in view, in accordance with the general practice and technical requirements. So, depending on different positions and their risks, the employer is responsible to provide safety and protective tools to the employee. This needs technical specifications. The assumption of the law is that if the safety measures are properly taken by the employer, the risks will be minimized. It must be noted, however, it is not a “flattery obligation”. Different job positions are exposed to different risks. Thus, type of precautions and protection depend on the nature and extent of positions. This increases the financial burden of the employer, which the employer in turn distributes in the market through her products. As a result, it is the society that ultimately incur the costs. But, occupational disease is of a cumulative effect ; it may not automatically result in disease, due to working for a long time. The next question that the code tries to address in respect of safety measures is that what if accident occurs where the necessary procautions are taken. Except with the ntentional fault of the victim, in almost all cases, in case industrial accidents occur, the employer will be obligated to compensate the employee. Employment injury could be industrial accident or occupational disease. Disease may be contracted due or sudden or immediate bodily injury. There is a maximum cap to be covered as the employment injury compensation. There is also cost of mitigation to be borne by the employer. As soon as the accident occurs, the employer is obligated to transpose the employee to the nearest medical facility. This could be cost of tracks, cost of hospital and so on. Further, if there is reduction in working capacity, it should be remedied. Finally, the code introduced a sort of bench mark under art. 2522 from which the employer cannot go downward (terms which are favorable to the employee). Art. 2522. — Terms unfavourable to the employee. (1) Terms in a contract of employment which are less favourable to the employee than the provisions of this Title shall not be valid unless they are expressly authorised by law. (2) They shall be made in writing or they shall be of no effect. It is called “meet or exceed rule”. it dictates either to meet the minimum requirement determined by the law or to exceed be beyond that. The civil code failed, however, to address some issues. One is the issue of minimum wage-art. 2535. (1) The employee shall be entitled to the wages which have been agreed or result from collective agreements or standard agreements binding the employer. (2) Failing such stipulations, the amount of wages shall be fixed in accordance with the custom of the occupation or the custom of the place where the work is performed. (3) In the absence of custom, it shall be fixed by the court in accordance with equity. Under this provision, wage was as agreed; it doesn’t prescribe the statutory minimum wage. The other issue is working rules. The civil code doesn’t strictly regulate working hours-art. 2528. It simply says that it will be required as over time and additional payment may be demanded by the employee. The third issue is about the freedom of association. Union is strength for the employees though the code didn’t come with the framework of such union. So, in such era, employees were organizing themselves as Ider or self-help association or none-profit organization aimed at horizontal relation. In fact, the paradox is the 1955 of the Ethiopian emperial constitution had a provisions for persons to form association. It provided that every Ethiopian has the right to form association in accordance of the law. Though the constitution was the supreme law of the land, there was no implementing legislation. The civil code treated employees individually and the collective aspect of the employment relation was not fully addressed. In terms of dispute settlement, the civil code doesn’t anticipate a specialized dispute settlement organized to adjudicate employment disputes. It only speculates to go to the court. The unique nature of the employment relation was neglected. Some 3 years after the civil code, in 1963, there was proclamation no. 210-1963, which was a legal instrument that regulates certain aspects of the employment relationship. It was the “labor relations proclamation”. This proclamation tried to fill some of the gaps that remained open by the code. So, the freedom of association was addressed in which the promise of the constitution gote the implementing legislation. It put minimum membership for association, where to register, the procedures for registration, the authority to control (ministry of community development). Collective bargaining was also regulated by this proclamation; trade union and employers’ association were allowed to bargain to better protect their interest.This enabled them to conclude collective agreement. This collective agreement will be part of the employment relationship. Terms of the agreement will be an integral part of employment contract. it also tried to regulate strike. In addition, it also gave a power to the ministry to issue regulations that may give minimum protection to labor. This also allowed the proclamation to prevail over the code. Accordingly, the ministry issued regulations in 1964. This was minimum labor conditions regulations no. 302/1964. Among any other things, this regulation brought additional annual leave. Under the code, for 1-5 years service, the annual leave was 10 consecutive days, for above 5-15, 15 consecutive days for above 15 years, 20 consecutive days. This regulation came up with more generous (so to speak) provisions of annual leave. It provided that an employee shall receive minimum annual leave with pay : 14 consecutive days per-year when he has been in the service of the employer, for at least one year, 16 consecutive days when he has been in the service of the employer for more than 3 and less than 5 years, 20 consecutive days when he has been in the service of the employer for more than 5 and less than 10 years, and 25 consecutive years when he has been in the service of the employer for more than 10 years. The annual leave increased in this regulation. The 3 brackets have been extended to 4 brackets, pushing the amount of leave days up to 25 years. The other thing in this regulation is limitationof working hours. Art. 7 of the regulation declared that working hour shall not exceed 8 hoursperday and 48 hours per week. Any work beyond the prescribed time will cause an additional payment and the payment iswill be differential and preferential mode of treatment. In other words, the payment in case of an over time work is higher the regular wage(art. 8 of the regulation). For example, if the regular payment is 10 per hour, it may be 1/4th or 1/1 and half. The law tries to put instrument to discourage the employer not to compel the employee to work for over time. The severance payment in the previous employment regime has also been revised. The regulation provided that “where an employer, without good cause, terminates a contract of employment which lasted for more than one year, the employee shall be entitled to a compensation of 30 times of the average due to him during the 6 immediately preceding periods of payment which has been in the service of his employment”. So, almost 6 montsh pay has been introduced and the vaguenesss that has been created under the the civil code by differentiation between the two versions was rectified 3 years after the civil code. Further, by bringing a special law, this proclamation tries to regulate the labor relation as a unique relation detached from other relationship. It provided for special dispute settlement mechanism. Outside of the regular court, this proclamation introduced “labor relations board” that is entrusted with a power to entertain labor disputes. Due to the speciality and continuity of the relation, it needed distinct dispute settlement mechanism. Labor relations by its nature implies in stead of determining on the basis of winner-loser approach, a win—win approach is ought to be followed by the labor relations board. This is mainly because of the nature of the employment relation. The relation requires peaceful co-existence and mutually agreed solution between the parties. So, this should not be approached in the loser-winner system since the relation will continue after the dispute. The board tries to reach at mutually agreed solution. Because, members of the board to be drawn by the parties themselves. The board is hence organized in a manner it can accommodate the interests of various parties. This structural arrangement of labor dispute enables the parties to reach at mutually acceptable solution before their exposure to court-like atmosphere. Though their appointment was to seek the decision of the emperor, the composition of the members of the board was: two of them from employer association, two other from the employee and the presiding judge from the government. So, it incorporated the interest of 3 parties. It aims to settle collective disputes in mutually acceptable terms. If it exceeds this arrangement, it goes to judicial remedy. The other issue is public holidays. The regulation provides out of the 14 public holidays, the 6 of them paid leave. So, in such period, individual labor relation and the collective relation were addressed. However, one critic was that it prescribed that minimum number of membership at 50 employees to formtrade union. At this time, no enterprise had such amount of employee. So, it was criticized that it is high minimum threshold which is tantamount to deny the right to freedom of association. The ILO recommended that it is better to set to 20 minimum number though it was not binding for the state. This moved until 1974. After the assumption of power by the military regime in 1974, the economic policy was changed to socialist mode ofpolitical economy. The emperor had a capitalistic path of development though it was fudo-bourgeois society. The derg made a paradigm shift towards a socialist path of development. The emperor allied with the western camp. The Derg came to the side of eastern countries, countries like USSr and other. There was also change of ideology to the Marxist-leninist ideology. For this ideology, private capital is exploitative. It agitates for the dictatorial dominance of the ploritariat. Derg took measurs that were in conformity with this ideology. It issued nationalization of means of production and distribution in 1975. It was nationalization without compensation. It was thought that those were accumulated capital that should be distributed to the labor. The government in this way became the major employer in the economy due to the nationalization process. This was followed by nationalization of rural land. So, vast agricultural plantations were put under the government. Therefore, state farms (public enterprise) were commenced. With this, the regulatory parameter was also introduced in the form of socialist tendancy in which the government gained a precedence over the economic control. In the same year, the labor proclamation 64/1975 was introduced with this ideological orientation. It was proclaimed in a pro-labor mind set. Particularly, the Amharic version clearly exhibits this mind set. During the emperor, the laws had the caption of “labor relation proclamation”. However, the caption of the proclamation during the Derg regime was “the proclamation to provide for the conditions of issues of employees. This was entrenched in the Amharic version of this proclamation. The orientation of the proclamation pushes the capital to the margin. It recognizes the sole importance of employee (labor). It tries to insist that the employee is the basis of the whole change. With regard to its content, the legislator has come with exhaustive list of grounds of termination of a contract of employment (art. 14/1 of the proclamation. Any termination out of those grounds were declared unlawful as per this provision. Upon this violation, the law considers that the contractual relation remains to exist in case the employment contract isterminated with legally prescribed grounds. It put grounds of termination from a to J. In the event where a contract of employment is terminated unlawfully, the employee will be re-enstated to his prior employment with payment. Remember that the civil code employed a generic concept of “good cause”. The civil code had some flexible indications. But, this proclamation was inflexible and regid as it came up with exhaustive list of legible grounds of termination of the contract. However, this created a burden on cost of labor and put the relationship in a danger after the reinstatement. The other thing is that existing paid leaves have been extended and new paid leaves have been introduced (art. 34). It also introduced the concept of “working days”. Sick leave was also sympathetic (art. 38). Maternity leave was made 45 consecutive days with pay (art. 39). There were other some of new additional leaves like condolence leave, marriage leave, leadership leave Etc. It also protected freedom of association by making the minimum membership requirement up to 20 members. The former proclamation gave equal unionization for both parties. The ILo convention also recognize this right in its convention on the freedom of association and organize, ILO convention no. 87/1948 (art. 4). Basically, this freedom of association is badly needed by the employees. But, when the employees are well organized, a single employer will be a weaker party. This warrants the equal protection of the freedom of association to both parties. However, due to its ideological orientation, this proclamation allows only the employees to form association. There were two reasons; first, it was asserted that all means and productions were nationalized by the government and there was no need of the employer. Second, it was believed that the employees had to dictate, not to be dictated by the employers. Lecture 4-Tuesday, July 27, 2021. Last time, we were discussing the historical development of employment law. Today, we will wind up this discussion and discuss sources of employment law. We’ve said that the Derg regime was characterized by strong command economy and the government was pro-labor in which the employer was marginalized. At a later stage, the labor relations board was replaced by labor court to handle dispute in respect of labor issues. There was also dispute settlement committee. The Labor courts were organized under the newly established Ministry of Labor and Social Affairs (MOLSA). After 1991, the EPRDF-led government came with different economic philosophy, which was free market economy. So, this was almost similar with the Economic philosophy pursued during the time of the Emperor. The years of 1990s were the collapse of the eastern block. The big donor international institutions like World bank and IMF were putting conditionalities for the developing and none-developed countries like Ethiopia. These institutions were putting conditions for countries to acquire technical and financial assistances. Some of this conditionalities were privatization, Economic liberalization and investment-friendly policies and regulatory framework. There was a need to obtain some loans from the donor countries to stimulate the domestic economy due to long- lasting civil war. So, this pushed developed countries like Ethiopia to fulfill such conditions. Around 1992, state-owned enterprizes were privatized through different modalities. It involved either selling the enterprises or giving smaller enterprises to the employees. Therefore, the prescription of the western donor institutions and countries which demanded “private as soon as possible and as much as possible” were to be followed. The government was required to roll back from the economy and market. But, regardless of such shift of economic policy, private investors were not willing to buy until the labor aspects of the state-handled were somehow freed; because,the enterprises were over-staffed. The objectives of the state-owned enterprises was creation of employment. Therefore, in order to achieve this objective, the state-owned enterprises carried redundant labor in their structure. So, at a later stage, structural adjustment became necessary to avoid labor duplication to attract foreign investors. Investors needed labor-shedding. In effect, privatization was associated with avoiding a redundancy of labor in different enterprises. This demanded the revision of the labor proclamation. Then, labor proclamation no. 42/1993 was introduced. This new proclamation tried to become investment-friendly due to national as well as international pressures. It tried to strike a balance that creates a conducive environment for the investment on one hand and protecting the fundamental rights of the labor on the other hand. It was difficult to dispossess all entitlments that were secured under the labor proclamation of the military regime. Because, the labor issue was very vocal and the new government didn’t want to antagonize with the labor. With respect to hiring and firing, this law was much liberated. So, the government has rolled back from the economy except for what we call “commanding heightes or key establishment. The government remained in possession of some important enterprises which were impossible or difficult for the private sector to enter in to either because the margine of profit was low, or the enterprises require higher capital which the private sector cannot afford. Such important enterprises include power generation, telecommunication sector Etc. Even up to now, the government is in possession of some of such enterprises like telecommunications, the Airlines, electric power generation, the railways and so on. Domestic private sector is totally incapable to enter to such sector. It was also prejudicial to the overall development of the country to attract foreign investors. So, the labor law is the reflection of the economic policy; when the economic policy is liberalized, the labor law is liberalized to strike the ballance, when the economicpolicy is command, the labor relationship will tend to be inflexible and rigid. The new proclamation re-introduced the employers to associate. The naming itself has been changed in a way it could encompass both parties. Economic development, maintenance of industrial peace, smooth working conditions and other were made part of this proclamation. The employment relation was also intended not only to be protective, but also productive and disciplined in a way it can significantly contribute to economic development. The other thing is that The labor relations board was re- introduced as a specialized forum to entertain collective labor disputes. Sources of employment law. The concept of ‘sources of law’ connotates at least two meaning; material source of law and formal source of law. Material source of law describes the origin from which a certain law or provision is derived. For example, let’s assume that a particular penal provision provides as: “whosoever intentionally committes homicide shall be punished with X-amount of years of imprisonment”. Material source of law tries to look at the origin of this particular provision. In the concept of material source of law, the source of the above provision could be custom, religion or morality. Mostly, the above are source of the law for many societies. On the other hand, ‘formal source of law’ tries to analyze legal instruments which will have impact in regulating employment relations or in resolving employment disputes if and when they occur. Therefore, in discussion of formal source of employment law, we are interested in what types of documents are required to be consulted in resolving labor issues. We have international sources, domestic or national sources. Internationally, there are relevant international instruments wich include ILO Conventions. These Conventions are not all conventions of ILO; Rather, they are limited to those which have been ratified by Ethiopia that have a binding force. Ethiopia has ratified about 22 conventions out of about 192 of ILO conventions. There are conventions on freedom of association, convention no. 87/1948, convention on the right to organize and collective bargaining, convention no. 98/1949, Termination of employment convention, convention no 158, equal remuneration convention, discrimination on employment and occupation convention, Child labor convention ETC. These will be relevant in our domestic disputes since they were made the integral part of the law of the land upon ratification by the parliament. There are also ILO recommendations which are soft laws. National sources of law National sources of law are divided in to (1) public acts and (2)private acts. International legislations are adopted and ratified through an international consultation process through the ILO arrangement. But, national public acts will be formulated by national public authorities. Public acts. Public acts consists the following domestic legislations:  FDRE constitution: Of all principles of the constitution, The principle on none- discrimination is too significant (art. 25). In addition, freedom of association, art. 31 and rights of labor Art. 42 are also relevant in regulating labor relation or in resolving labor disputes.  Proclamations: These include the labor proclamation, proc. 1156/2019, The federal civil service proclamation, proc. No. 1064/2017, Private employees pension proclamation, proc. No. 715, the public employees pension proclamation, proclamation on employment of persons with disabilities, proc. No. 568/2008 Etc. These are the proclamations of the federal organ. In respect of labor matters, the federal government has a constitutional power to issue labor code. In terms of civil service matters, the two governments regulate their own respective areas. The reason for empowering the federal government in such act seems to harmonize the labor relations. In countries like US, labor aspect is a concurrent jurisdiction. There is a prescription of a distinction on the nature of product. If a product that certain enterprise produces crosses inter-state boarder, it will be a federal matter. Therefore, small enterprizes will fall in the state jurisdictions. Our law is adopted in the form of code rather in the form of a piece of legislation. In our case, the code tries to include all matters in a single instrument. The structure is a structure of a code though there are separate pieces of legislations. In some countries, the subject matters may be separately legislated as Law of termination, Law of strike, Law of occupational safety and health, Law of employment inspection, Freedom of association act, Law of collective bargaining, Law of individual labor relation Etc. In contrast, our labor tries to include all these matters comprehensively in a single legal instrument. As mentioned earlier, the regional civil service instruments regulate the civil service aspect of the regional states. Title 16 of the civil code is still a gap-filling instrument as it has not been expressly repealed. Therefore, in a situation where the labor proclamation doesn’t cover a given subject matter, the code may serve as gap filling instrument. For example, management staffs were excluded from the application of labor proclamation. However, the Code didn’t exclude it. So, it plays a gap filling role in this regard.  Regulations of councils of ministers: The proclamation gives a power to the ministry. The Authorizations of the executive body to issue regulations are of two types; specific authorizations and general authorizations. Specificauthorizations are found in specific provisions like art. 3/3b and c of theproclamation. Art. 3/3/b of the proclamation provides, “ The council of ministers, by regulation, determine the inapplicability of this proclamation to employment relations established by religious organizations and Charitable organizations”. Art. 3/3/c of the same proclamation empowers the same organ to issue regulations governing conditions of work applicable to personal services. The general authorization is found in the miscilaneous part of the proclamation. For the civil aspect, the executive organ will be Civil Service agency. It seems a new omission of the new labor proclamation, proc. 1156/2019. However, it is almost a common standard to authorize council of ministers to issue all necessary regulations to govern general aspects in the part of miscellaneous provisions. These regulations and directives of an executive organs would serve as a public source of employment law. As aspect of public act, cassation bench decisions are also other instruments. Private acts these are acted by private parties. So, some tend to argue that these are extra-legal sources. On the Other hand, there are others who argue that since the civil code establishes the principle of pacta sunt sarvanda-art. 1731/1 which operates as binding legal instrument between the parties, it is legal act. Privat acts include:  contract of employment or letter of appointment: Contract of employment is a bilateral agreement made between the two parties (the employer and the employee) which has a binding effect. In terms of civil service, employment relations is established by letter of appointment. Actually, it is difficult to say it is a private act; because, many of the terms in the letter of appointment are stipulated by the law. There is no room for negotiation, which makes it more administrative law than a private act.  Collective agreement: Employment relation consists of two aspects; the individual employment relation and the collective aspect. The employees collectively negotiate with the employer and arrive at a certain agreement with respect to working conditions and other benefits. So, as soon as they agreed on the certain terms and conditions, they have to sign it and obey it as a source of law among themselves. We don’t have collective agreement in the public sector for various reasons. One of such reasons is that we don’t have the freedom of association recognized for the civil service aspect. Although the constitution promises for enactment of separate legislation to that effect, It has not been realized yet. The ILO convention on the freedom of association, convention no. 87/1948 obliges the member states to ensure the right of the employees [without distinction] to form an association of their own choice. Even in the face of this internationall legal duty of the country, it remains questionable whether the association of employees would be effective. Because, there is a budgetary constraint in the public offices. Many of the benefits for the employees are prescribed by law. Therefore, there may not be room for negotiation. Any way, we have collective agreement as a bilateral instrument between the employees’ association and the representatives of employer. In Ethiopia, collective agreement is in enterprise level; we don’t have what we call “sector level collective bargaining or industry level collective bargaining”. In some countries where there is developed labor jurisprudence, collective bargainings are at the industrial level. For example, if there is a collective agreement regarding textile industry, that regulates the whole market.  Work rules (human resource policies): employers have a prerogative to come up with work rules as to how production should be conducted at the premises. They can also come up with working disciplines, working hours, Tea breaksEtc. Unlike collective agreements and contract of employment, work rules are unilateral acts which are issued by the employer. Work rules are also binding on the employees and hence, they are source of employment law. So, there is a sort of “regulatory suffocation”. Therefore, there may be contradiction or inconsistency between this multiple instruments. In such cases, the question would arise as to which instrument will prevail and how we should resolve such contradiction. For example, let’s assume that article 34 of the labor proclamation (hypothetical) provides as: “an employee shall be entitled to 14 working days of annual leave with pay”. Art. 3 of the contract of employment says: “We [the employer and the employee] hereby agree that the employee shall be entitled to 16 working days of annual leave with pay”. Let’s further assume that art. 17 of the collective agreement says, “every employee shall be entitled to 20 working days of annual leave with pay”. In this hypothetical scenario, we have three instrument regulating the same particular matter. But, the number of annual leave they provide differ. Here, favorability clause is suggested to resolve such contradictions between the instruments. We need to determine as to which instrument provides more favorable terms to the employee. Because, in minimum labor condition, we should put the flore of rights. Despite the fact that the word “shall” indicates obligation in the ordinary legal reading, the above construction put benchmark. In such construction, it is  possible to apply more favorable term above the prescribed bench mark in the interest of the employee. Hierarchy of laws will not be appropriate mode of interpretation in minimum working conditions. Because, the historical evolution of labor jurisprudence pursued the element of social protection. However, it is not usually simple to identify the favorable term to the employee. For example, it would be difficult if there is a clause which allows 20 working days of annual leave out of which only 10 days are paid. Lecture 5-Thursday, July 29, 2021. Scope of Employment law. The final part of the introductory section will be determining the territory; the scope of employment law. Last time, we were saying employment is a committement to render service in return for payment. This is the general point of departure. But, all committements “to render service in return for wage” may not be employer-employee relationship. There are other employment-like relationships. Thus, there is a need to distinguish it from such other. Accordingly, there are two level of demarcation; one is definition while the other is distinction. Basically, there are two types of relationship that may create confusions with employer-employee relation. These are: principal agent relationship and client-contractor relationship. Specially, there is a lot of confusions regarding the contractor-client relationship and the employee-employer relationship in the practical arena. Because, both of them are committements to render service in return of wage. These three relations are regulated under the civil code. Hence, we may somehow rely on the definitions accorded to each of them in the code to make distinction among them though we may notreach ata conclusion solely on such basis. Agent-principle relation: In respect of agent-principal relation, arts. 2179 and 2199 of the civil code are relevant. Art. 2179 reads: Source of authority. The authority to act on behalf of another may derive from the law or a contract. Art. 2199 tries to define the contract aspect of agency. It provides that agency is a contract whereby a person, the agent, agrees with another person, the principal, to represent him and to perform on his behalf one or several legally binding acts. Employer employee relationship: art. 2512 defines employment as: contract of employment is a contract whereby one party, the employee undertakes to render to the other party, the employer, under the latter’s direction for a determined or undetermined time services of a physical or intellectual nature in consideration of wages which the employer undertakes to pay. Client-contractor relationship: art. 2610 defines it as a contract of work and labor is a contract whereby one party, the contractor undertakes to produce a given result under his own responsibility in consideration of a remuneration that the other party, the client undertakes to pay. In fact, distinction of these relationship could be relevant for other areas of law. For tax law, if the relation is the employee-employer relation, the employer is obligated to deduct from the whole amount of tax at payrole. But, When it comes to client-contractor relationship, it is the contractor that declares his tax at the end of the year. In case of extracontractual llaw, vicarious liability is established where there is employee-employer relationship. Where the relationship is client-contractor, the contractor renders service at his own business risk. Vicarious liability also doesn’t apply to agent- principal relation. The agent is committed himself to render service of representation. The contractor provides a given result and the employee provides services of physical and intellectual nature. So, in one way or another, all three types of relations commonly require provision of service. One difference between these various types of relations is source of authority. For agent-principal relation, the source of authority emanates from contract or law. In case of employee-employer relation, contract of employment is a source of authority whereas client-contractor relationship derives its authority from a contractual relationship between the two client and the contractor. So, there is asimilarity between employee-employer relationship and client-contractor relationship in terms of their authority (contract). The other element is remuneration (payment). In this regard, the question is: Is service to be rendered by these parties (the employee, the agent and the contractor) in expectation of payment? In agency relation, payment is not aspect of definitional element. So, it may be a pro bono service in case of agency as of operation of law. Contractually, it may be agreed without consideration. But, the employee-employer relation and client-contract relation are established in consideration of payment. A certain relationship which is not clearly found in the definitional element is identity of the parties. An agent and contractor could be a legal person or physical person. But, an employee, is, by definition, a natural person. Even under the present proclamation, the Amharic version of the proclamation makes it clear that the relationship is established by natural person. In case where the agent is a physical person, the agent is at a liberty to nominate its own natural person to render the agreed service. But, in case of employee, since we engage with natural person, personal service is an essential element. The employee cannot, as of right, delegate someone to deliver the service. Where the legal person engages in the service provision, we are interested in the outcome; not the identity. The other element is the degree of authority. In agency contract , the agent has a wider flexibility to enter in to legally binding acts within his authorization and the general direction of the principal. In client-contractor elation, the contractor undertakes to produce the result at the risk of his own business. So, the client is interested only in the outcome. The contractor has wider liberty. In employee-employer relationship, however, the service is to be rendered under the employer’s direction. So, the employer has the power to direct and instruct which is technically called “command and control test”. The power to instruct is very essential. Instruction in this context may mean the power to determine the time, place and the manner of work. The power to monitor whether the instruction has been complied with is in the hands of the employer. The process is important for the employer as opposed to the client. Incase the instruction has not been complied with, the employer has the power to discipline which include the power to fire where the none-compliance is serious which warrants dismissal. In many cases, the relationships have similarities like payment, contract Etc. but, when it comes to the level of control, the employerhas a rigorous authority than the other relationships. With respect to termination or separation, in agency contract, the termination is at will. With respect to client-contractor relation, termination is unilateral whereas in employment relation, termination cannot be without good cause. So, termination is not purely contractual. There is a sort of legally restricted way of termination. Agent principal relation and client-contractor relationships are not our areas of interest in this course. Employment law is only interested to regulate the employee-employer relationship. Contract of employment Art. 4 (1) of the Labor proclamation, proclamation no. 1156/2019 defines contract of employment as “Contract of employment shall be deemed formed where a natural person agrees directily or indirectly to perform work for and under the authority of an employer for a definite or indefinet period or piece of work in consideration for wage”. More or less, the proclamation transplanted the definition under the civil code. So, the above definition incorporates 5 basic elements. These are: agreement of a natural person, service, the authority of the employer, length of time and consideration (wage). It is contractual relationship; but, within that contractual relation, there is vertical relation where the employer is at a higher position to hand down instructions to the employee. In terms of length of time, the definition clearly shows that contract of employment could be for three types of period of length of engagement; defined, undefined or period of time to be calculated from the perspective of the completion of a given piece of work. The other element is consideration of wage. As mentioned earlier, unlike the agent-principal relationship, contract of employment cannot be concluded to render a pro bono service. Authority and service are also under the definitional scope. The Civil code tried to classify services as physical or intellectual. The proclamation seems to be general in its context. What is a priest- church relationship. Is it an employment relationship or other wise? For quite a long time, there was much confusion of the judiciary regarding this issue. The priests used to sue the orthodox church in case they were dismissed from their position in the church. They alleged that the church unlawfully terminated their contract of employment. The courts used to decide that as long as the authorized executive organs have not excluded such relationship from the application of the labor proclamation, it falls within the ambit of proclamation and the church could not terminate its employment relation without its employees (priests) without lawful grounds. On the other hand, the church used to argue that it had its own justice dispensation mechanism and the secular laws must not regulate its internal affairs. The church has repeatedly requested for the regulation that excludes her employees. The prior labor proclamation, proclamation no. 42/1993 empowered the councils of ministers to issue a regulations that may provide the types of relations on which the provisions of the proclamation would not be applicable. However, this promise was not fulfilled until 2015. By then, the ministry has come up with regulation no. 342 which excludes the religious organizations from the ambit of the labor proclamation. The federal cassation bench has given a binding interpretation regarding this controversy. The case was between Deacon Miheret Birhan V. Hamerewerk K/Mariam church, File no. 18419, Ginbot 4, 1998 (EC), Vol. 8, P. 229. In this decision, the bench categorized employees of religious institution in to two: employees who provide spiritual services and those who are recruited for none-spiritual services. Accordingly, it decided that the employees of religious institution that render none-spiritual services are within the ambit of the labor proclamation. This category may include employees like guardians, electricians, drivers and employees who serve in the business premises of the church. The court held that these are governed by the labor proclamation unless they are expressly excluded by the regulation of authorized organ. However, employees that provide spiritual services like priests, deacons Etc are outside the scope of the proclamation. According to the court, such employees are not within the scope of the proclamation not because they are excluded, but because they are not contemplated by the legislator in the first place. They do not fulfill the definitional element. Thus, the court didn’t seek exclusion clause to decide that they are not governed by the proclamation. Rather, it held that the legal system should be secular whereby the state should not interfere in to religious matters and vice versa. For the court, if employes rendering spiritual service were to be governed by secular law, it militates the state against the principle of separation of church and state. Lecture 6-Tuesday, August 3, 2021. Last time, we have tried to see the definitional elements of contract of employment. Definition, duration and content of the contract of employment are provided under arts. 4 (2), 4 (3), 4 (4)and 4(5). Specifically, art. 4 (2) of the proclamation provides for contents of contract of employment. Needless to mention, legality and morality are prescribed in the general provisions of the contract under the civil code. Sub- art. 5 of art. 4 provides the “meet or exceed” rule. Accordingly, the contract of employment should either meet or exceed the minimum threshold of the law in terms of the benefits of the employee. It reads: “the contract of employment shall not lay down less favorable conditions for the employee than those provided for by the law, collective agreement or work rules”. in terms of content, these provisions put the basic parameters. Form of contract of employment: The discussion on the formal requirement on the contract of employment takes us to art. 5 of the proclamation. It is a direct reproduction of art. 1719 (1) of the civil code. It provides: “Unless otherwise provided by law, a contract of employment shall not be subject to any special form”. However, we have areas where the law provides otherwise. For example, contract of probation (art. 11/3) and apprenticeship (art. 48/1), termination by agreement-art. 25/2 Etc are required to be made in writing. In most cases, employees feel insecure if they don’t have a written contract of employment. But, this is not the concern of the law. If the conclusion of contract of employment can be showed in time of dispute through witness or any other evidence, that is sufficient. It could be proved either by witness or any other means. However, a written contract is not difficult to prove. So, it is better than an oral contract. But, , a written instrument is better for evidentiary purposes. Because, it is durable and not subject to forgetfulness. More often than not, in bigger companies, there is a sort of templet for a written contract of employment that the employee will sign. Here, an important question is that what if the law doesn’t require written instrument but the parties agree to reduce their contract? Should they follow that? For example let’s assume that the parties have agreed to make their contract in writing. They reduced their terms in to a written document and affixed their signature thereof. But, they didn’t put the signature of two witnesses on that document. Now, the question is whether this document will be valid or not. To solve this, we need to got o arts. 1726 and 1727 which regulate two scenarios. The first scenario is the agreed form, a case where the parties agree to subject their contract to certain form. This is the scenario of art. 1726. The second scenario of art. 1727 is the ‘prescribed form’, a case where the law itself provides for certain mandatory formality clauses. Art. 1726 states: “A contract which the parties agree to make in a special form not required by law shall not be deemed to be completed until it made in the agreed form”. So, if their agreement doesn’t need witnesses, their agreement will not be invalid in the absence of the witnesses. On the other hand, art. 1727provides as follows. Art. 1727. — Written form. (1) Any contract required to be in writing shall be supported by a special Document signed by all the parties bound by the contract. (2) It shall be of no effect unless it is attested by twoWitnesses The two witnesses requirement will be relevant as of operation of law. If the parties decide to make it in writing, it may be a contract. But, there is another way of concluding the contract which is a letter of employment. In such mechanism, a unilateral employment letter will be issued by a company since it is difficult to seat down and discuss with every employee. So, if the employee accepts the letter without objection, and kept silent for few days, it amounts to acceptance. This will be considered as a valid contract of employment through another means. Of course, in some cases, the employers tend to inject a statement that requires the employee to sign and resend the letter to the employer in order for the employer to know whether the employee intends to be bound by the contract. However, this is also irrelevant for the law. This is anticipated under art. 7 of the labor proclamation. Earlier, we have excluded some relationships because of our consideration that they don’t satisfy the definitional element of contract of employment. The sole fact that there is employment relation doesn’t necessarily mean that the labor proclamation applies. There are another ways of avoiding the applicability of the labor proclamation. We call these ways “exclusions”. Certain employment relationships may still be excluded from the ambit of employment relation even if they satisfy the definitional element. There are two types of exclusions: outright exclusions and conditional exclusions. These are provided under Art. 3/1 and /2 of the proclamation. The most relevant and express (outright) exclusions that frequently come before the court of law are three: managerial staff (art. 3/2/c), domestic workers (art. 3/2/d) and, employees of state administration (art. 3/2/e). Managerial staff: who are these, why are they excluded? managerial employees work for the benefit of the employer representing the employer. So, they are technically the agents of the employer. They put pressures on employees to protect the interest of the employer. Their job position requires them to benefit the employer. They exist because they have obtained the trust of the employer and they acquire protection from the unit that places trust on them (employer). So, the law assumes that they don’t need additional protection since the employer well protects them. The ILo jurisprudence also accepts this exclusion. However, it simply puts certain footnotes that it should be narrowly defined. But,who are these? How do we differentiate managerial employees from none- managerial employees? Different legal systems adoptdifferent ways of distinction. Even civil law countries adopted different differentiating mechanisms. For example, underEthiopian law, we have had structural approach and functional approach of making distinction. In a structural approach, we simply see the structure of the company. For example, in a given typical company (PLC or share company), Structurally, we have General meeting of share holders, board of directors, general manager, Deputy manager for operation, deputy manager for finance, deputy general manager for finance and human resource. Below this, we have other management staffs who are accountable to the general manager or board of directors like the audit service, the legal service Etc. Then, we have the technical head, engeneering department head and other bodies below the finance department. The labor proclamation of the Derg regime, proclamation no. 64/1975 adopted this structural approach. It says that a managerial staff is an official who is accountable to the general manager or to its deputies. So , in order to distinguish the management staf from the ordinary employee, we need to see the staff. Therefore, based on the structure, any employee outside of these structure is ordinary employee. But, the danger in this way of distinction is that people who may not have genuine management function may be categorized as management staff because of the fact that they are accountable to the Gm. For example, even the secretery of the general manager could be categorized to the managerial employees. There was a case at the time of derg regime in which the court followed such structural approach of distinction. There was a small hotel that comprised the owner, manager of Beverages, manager of mills and manager of accommodation. The hotel had a total of 15 employees. These employees sought to form their own union. The three managers accompanied the other employees who were entering in to a meeting hall to form their union. But, the owner of the hotel prevented them to join the association alleging that they were management staffs and could not form a union with ordinary employees. On their part, the three employees argued that they were not in actual power of management since almost all decisions on their positions used to be decided by the owner. Then, the employees instituted a sute against the owner. In their suit, the claimed that they were denied their legally recognized right to form an association with other employees. The owner defended before the court depending on the structural positions of the employees. In this case, what puzzled the court was why 4 managers were important for a hotel who has no beyond 15 employees. Hence, the court sought for the job description of the three employees. In the job description, the job of the manager of the beverages was to check the amount of drinks reserved in the refrigerator. The manager of mills assumed the charge to check the amount of mills available. Similarly, the manager of accommodation also assumed a responsibility to check whether the rooms, beds and all necessary nighte wearings (blankets, sheets Etc) are washed and pillows are replaced for the next day. So, factually, it was established that they didn’t involve in the managerial function of the hotel. Finally, the court decided that the employees were functionally ordinary employees and can form union together with other employees though they were structurally responsible to the owner. Some criticized the court for making law by disregarding the structural approach stipulated in the proclamation during this time. On the other hand, others defended the court arguing that the court should seek justice. So, it should not enforce the absurd terms of the law directly as they were written on the paper. Hence, it should observe pragmatic situations and this decision satisfy this demand in light of this objective. These gave rise to the emergence of functional approach under proclamation no. 42/1993 and subsequent proclamations. Art. 2 (10) of the present proclamation also incorporates the functional approach. It reads: “Managerial employee” means an employee who, by law or delegation of the employer, is vested with powers to lay down and execute management policies, and depending on the type of activities of the undertaking, with or without the aforementioned powers, an employee who is vested with the power to hire, transfer, suspend, layoff, dismiss or assign employees, and includes a legal service head who recommend measures to be taken by the employer regarding such managerial issues, using his independent judgment, in the interest of the employer. So, some one who is involvd in decision, policy formulation and execution, or human resource administration like hiring, firing, promoting, demoting, suspending, laying off Etc, representing the company either by law or by the delegation of general manager will be categorized under the managerial employee. “I don’t know why the legislator wanted to identify the legal service Head”. In principle, the management staff is who gives decisions. However, although she gives recommendations, the legal service head is part of the management staff. “their [the legislators] intention seems to avoid the legal service head from her membership of the employees’ association. Because, she may militate the employees against the employer with her legal knowledge”. There are several reasons for exclusions of managerial employees. One of the reasons of their exclusion is that they represent the employer and conflict of interest may arise. If they are categorized under the employees and allowed to join thetrade union, there could be two dangers. First, it would be highly likely that they will take the leadership of the union since they are technicallyskilled and technocrats. Second, if they are allowed to join, they misuse the secret of the employees and the interest of the employees will be affected. The other reason is the employer has confidence on them and they benefit from the protection of the employer. Hence, the assumption is that they may not need additional protection. The fourth reason is that they are skilled labor and they can negotiate on the labor market. They will also be short in supply in the labor market and there employability is high. Other employees like prosecutors, the police members Etc are excluded because of special laws issued by the parliament and the authorized organs to govern them. Employees of state administration have also special laws. But, it is somehow controvertial. Generally, they are considered to be employees of state administration. employees of the state is broader than the state administration. Because, the former may include the state administration and employees of state-owned enterprises. Since the enterprises are owned by the government, Employees of state-owned enterprise may broadly be categorized under the employees of state. the law is excluding only the employees of state administration. So, the issue will be how do we differentiate the state administration employees from those of state-owned enterprises. In other terms, how is the national bank of Ethiopia is different from the commercial bank of Ethiopia?. There are several grounds of distinction between the two types of employees. Regulatory power: the power to regulate the financial sector isvested with the national bank (NBE). The nBE controls the activities of the financial institutions. It has regulatory power and quasi-legislative power as it issues directives by virtue of delegation. It undertakes administrative decisions which be from warning to closure. In contrast, any of these regulatory powers is not given to the Commercial Bank of Ethiopia (CBE). CBE is established for a business purpose. So, employees of the CBE are within the ambit of the proclamation while the employees of NBE are outside of it. When the state is in its traditional function, it provides justice, it does do business. The Same distinctioncould be for the Civil aviation agency and Air lines, telecommunication and telecommunication corporation. But, there are employees of social service providers. Who are these? “Where do you categorize me, the employment law instructor”? This category includes doctors, teachers, health personells working at public social facilities Etc. It is difficult to categorize these under the employees of state-owned enterprises since they don’t work in profit making mindset. They work with annual budget allocated by the government. On the other hand, they could also not be categorized under employees of state administration. Because, they don’t have regulatory power. So, it seems controvertial as to which law is applicable to such employees. On one hand, it could be argued that the labor proclamation excluded only the employees of state administration and exclusion should be interpreted narrowly and such employees should fall under the application of the labor proclamation in sofar they are not expressly excluded by law. “But, this is part of the truth”. the civil service proclamation provides that those who are permanently employed in any institution administered by government budget are employees of the state. Note that the civil service proclamation does not define such employees from perspective of state administration. Rather, it defines them from the perspective of the budget allocation. Employees of personal service: art. 2/16 of the proclamation defines Employees of personal service as: “employment of private service” means an employment of a none profit careening, cleaning, guardianship, gardening, driving and other related services for the employer and his family consumption. domestic workers are employees who satisfy the definitional element but excluded from the proclamation for policy reason. Their spheres of employment includes domestic service like guarding, guardening, cooking, cleaning ETc in a household. It is not the nature of the service which is excluded; it is rather the nature of the employee. In hotels, we have all above personells. But, what is excluded is working for household, which is not a profit making entity. If these service are provided for profit making entity, they remain within the proclamation. Otherwise, they are excluded. The domestic servant is the weakest party. Why, therefore, is excluded from the protection of the law. One reason is that it is too domestic and too private to regulate it by law. The other reason is that it may backfire. Because, the employers hire domestic servants to the extent of their pocket. If they are expensive, they may decide to work for themselves. They are marginal consumers. But, in case of hotel, even if it is expensive, such employees are necessary if the profit is to be maximized. The other reason is that it is difficult to standardize the labor conditions of domestic workers in real terms in Ethiopia. In our case, there is a vast disparity of means and conditions of providing service among the domestic workers which primarily depends on the living standard of their households. For example, some serve in a house where electric power is better while others work where such electric power supply is not available. So, it is almost impossible to set a standardized working conditions to regulate domestic works. It makes difficult to the rules of over time payment and Etc. Sometimes, There is what we call “mixed services”. In some situations, employers tend to use some disguised modalities to evade from the application of the proclamation. For example, let’s suppose that someone is employed a driver for a garage. The responsibility of the employee is to take the employees of the garage from their home to the garage (working place) and back to their home. However, the working time of the employee is short as he only work in the morning and on the end of the day. As a result, the owner of the garage (employer) instructed him to take his children to school and back to their home as well as to provide the same service to the wife of the employer while she goes to shoping. In this scenario, the service of garage is a business work. But, the driving service provided to the children and wife of the employer are purely household services. So, in this case, we have mixed services. How should this type of relationship be regulated? Various solutions could be envisaged to solve this problem. The first solution supposes that the original contract of employment between the employee and the employer should be considered. Hence, if the contract stipulates that the employees is a domestic worker, then it should be categorized under such area. Otherwise, it should fall under the proclamation. However, this has an obvious danger. Because, Some corrupt employers may nominally employ people as domestic workers and instruct them to serve their business works. So, if we are going to follow this interpretation, we need some legal ristrictions to avoid such disguised employment. The other solution considers the length of time which the employee spends on both works. If the employee spends his substantial part of his time on domestic service and the business service is minimal, he should be categorized as domestic worker. Otherwise, if both of the services take more of comparable time and it is doubtful to determine, we should categorize him under the labor regime. Because, exclusion is exception and exception should be interpreted narrowly in a manner that favors the employee. So, if we are doubtful we need to regulate the employee under the general principles of labor law which ultimately benefits the employee. Lecture 7-thursday, august 5, 2021. Last Class, we were trying to see the exclusion of certain categories of employees from the applicability of the proclamation. Any consideration of exclusion clause of the labor proclamation triggers a question as to what legal framework governs the relationship of the excluded employees. With respect to the management staff, Few points must be borne in mind. First, as we have discussed in our previous class, these are categories of employees whose significance on the labor market is high due to their skills. There employability is thus highest of the rest categories of employees. So, they may be protected in their contract of employment. Second, even though the labor proclamation excludes management staf, the civil code doesn’t exclude them. So, the civil code helps in such gap filling situations. For example, if their contract doesn’t specify about the annual leave of these employees, the civil code shall be applicable as a gap filling instrument. Third, for those who work ina state-owned enterprises, during the derg period, the none-managerial employees were ruled by the proclamation and for the managerial wones, there has been a directive that has been issued by the ministry of trade and industry. The directive was meant to protect the managerial employees of state-owned enterprises even at the time of their privatization. With respect to state administration proclamation, we have special proclamations (Civil servant proclamations). It is fixed and none-negotiable. Therefore, it is more administrative law than contract of employment. In respect of domestic workers, the contract of employement is again relevant. The civil code is another relevant legal instrument in regulation of such relation (see arts. 2601-2604). It is entitled as “contract of domestic servants living in households”. It is deragotary for them to be categorized as “servants”. The third regulatory framework is that the proclamation promises the councils of ministers shall issue the regulations to regulate certain areas (art. 3/3/c). This provision has been since 1993 proclamation. However, the promise has not been fulfilled until this day (5/8/2021). Surprisingly, the government argues for those domestic workers who go abroad without regulating the internal situations. So, it remains unregulated. However, it must be maintained that these exclusions are for the benefit of the employer. So, if the employer decides to give equal protection to the managerial employees with none-managerial employees, the law doesn’t have a problem. That is why we said their contract of employment is one source of regulatory framework. Specially, when it comes to leaves, they may get equal benefit. In some legal systems, there is what we call “purposive exclusion”. In such jurisdictions, in principle, the labor proclamation is applicable to the management staffs except those provisions that are related to unionization. In case of unionization, the countries try to avoid the danger of conflict of interest. But, the Ethiopian law is from the side of a flat rate exclusion. The other modality of exclusion is prescribing certain conditions, the satisfaction of which entails exclusion. This takes us to 3/3 (a and (b) of the proclamation. “(c) is actually inappropriate drafting. Actually, it is more of a confusion than clarity” The provisions read 3/ Notwithstanding the provision of Sub-Article(1) of this Article: a) unless the Council of Ministers by regulation decides, or an international agreement to which Ethiopia is a signatory provides otherwise, employment relations between Ethiopian nationals and foreign diplomatic missions or international organizations operating with in the territory of Ethiopia shall be governed by this Proclamation; b) the Council of Ministers may, by Regulation, determine the inapplicability of this Proclamation to employment relations established by religious or charitable organizations; In Ethiopia, we have many embassies. In Embasies, even though the businesses operate by the foreign nationals, Local staffs may also be recruited for various purposes like for driving, guarding, financial affairs, processing the Visaapplications Etc. These local staffs are governed by the proclamation unless they are excluded by regulation or international agreement to whichEthiopia is party. So, the conditionality is whether there is regulation or international agreement. Similarly, we don’t have any regulation issued by the authorized organ in this aspect. Alternatively, there is an international agreement (executive agreement). The practice is that as soon as certain country’s diplomatic mission arrives in Ethiopia, the representative of that country signs an agreement with the host state. Under this instrument, they agree that the diplomatic mission is required to respect the laws of Ethiopia including the labor proclamation. So, in effect, this makes the proclamation applicable. But, there is a provision on dispute settlement. So, the dispute shall be amicably resolved before the protocol department within the ministry of affairs. That means, it is only the dispute settlement aspect that is excluded by such agreements. The diplomatic  missions do not want to submit to domestic institutions. The principle of reciprocity also obliges Ethiopia to respect such duty. The second conditional exclusion pertains to employees of religious and charitable organizations. Similarly, in the absence of regulation of the authorized organ, the proclamation becomes applicable. Remember the supreme cassation bench decision. Until 2015, there has no such regulation. Now, we have particular regulation on this issue. The organ came with reg.342/2015 which has few provisions. It confuses matters rather than explicating them. In religious institutions, it tries to categorize employees in to different types. Accordingly, it involved Employees of spiritual service, employees of income generation within the religious institutions, employees of administration service and employees of charitable service. So,we have almost 4 categories. There may be grey areas combiningspiritual and none-spiritual services. Spiritual employees are clearly excluded. It is questionable whether this is because of they don’t satisfy the definitional element or not. As you remember, in the decision of the cassation bench, the employees of such type were excluded as they don’t satisfy the definitional element. However, the approach of this regulation seems that they are excluded not because of above factor. Rather, it is because it was believed that they should be excluded. Art. 3/2 of the regulation provides that the proclamation does not apply to those employees who combine spiritual service with other services like administrative, income generation service. For example, a priest who serves as a Gebez (the administrator of the church) is excluded by this very provision. On the other hand, art. 3/3 of the regulation provides that the employees of income generation activities are governed by the proclamation. Further, the regulation provides that without prejudice to art. 5 of the regulation, the proclamation shall be applicable with respect to workers engage in performing administrative or charitable activities in religious organizations. Art. 5 of the regulation is about collective bargaining. It reads, Collective Bargaining 1/ Religious or charitable organizations shall not be obliged to engage in collective bargaining on increment of wages, benefits, incentives and other similar matters with workers engaged in performing administrative or charity activities. 2/ Notwithstanding the provisions of sub-article (1) of this Article, increment of wages, benefits, incentives and other similar matters may be governed by work rules or employment contracts of religious or charitable organizations. So, they are partially excluded. So, under the proclamation, we have three scenarios: fully excluded, partially excluded and fully included. With respect to work of personal service, Art. 3/3/c of the proclamation provides: “the Council of Ministers shall issue Regulation governing conditions of work applicable to personal services” Some lawyers argue that employees of personal services are within the ambit of the proclamation. However, the instructor does not agree with such argument. As per the instructor, the employees of personal services are already excluded by art. 3/2/d of the proclamation. So, he takes that it is this provision that should be applicable. “either 3/2/d is redundant or 3/3/c is redundant. Both cannot stand together logically”. The rest are the employees of business enterprise; both public and private. The core employment relation intended by the labor proclamation Is this aspects. Others operate under their default position until the issuance of special law. Rights and obligations of parties Since employment relation is a contract, the detail of the rights and duties needs to be stated in employment contract or the letter of employment. But, the legislator doesn’t leave it squarely to the contract. Art. 12, 13 and 14 list the rights and duties of theparties (the employer and employee). Even if the contract of employment between the parties doesn’t spell out rights and duties prescribed under the above provisions, they should be red in to the employment contract; these are implied terms. If they are expressly provided in the contract instrument, it will be better. However, the mere fact that they are not stated on the contract of employment doesn’t necessarily mean that the parties may disregard them. Art. 12 specifies positive obligation of the employer while art. 13 provides the positive obligation of the employee. Art. 14/1 provides negative obligations of the employer and art. 14/2 provides negative obligations of the employees. Positive obligations: in law, we have permissive norms, directive norms and prohibitive norms. Permissive norms give entitlement to exercise or not; there are discretionary for the duty-bearer. Directive norms require act and the prohibitive norms put negative obligation of refraining from certain prescribed act. Art. 12 and 13 are directive obligations and art. 14 is prohibitive in its content. Positive obligations of the employer: one obligation of the employer is to provide work. Why should the employer be obligated to give work is sometimes controvertial. Traditionally, the duty to provide work was put as a duty for piece rate wage. Since it is an outcome-based payment, denying task will ammunt to denying benefit. But, in respect of a periodical payment, there was no such legal duty on the employer. art. 2529 of the civil code provides as follows: (1) The employee who is paid at piece-rates or for the contract may require the employer who engages him to give him an adequate amount of work for the duration of the contract. (2) Where there is no piece work or contract work available, the employer may employ the employee by the hour or the day. It doesn’t impose a duty on the periodical payments to provide work. But, in human development process, after the concept of human-based approach to labor, work is a source of pleasure, expression of human dignity. This philosophy pushed for considerations of social outlook that employment itself can add to human development of an individual, as well as the demand for development of career.If a person is employed without work, it is harmful for his future progress. Because, in most cases, when certain employee needs to alter his working area,one of the usual requirement of new employers would be the achievement of the employee in his former employment relation in similar position. In such cases, the employee will be loser since there will not be file which describes his success as long he is not given a work. There is also what we call “constractive dismissal” which may result from denying work with payment. this is a situation in which the employee is pushed to resign in indirectly. Of course, suspension is possible to prevent the employee from work. However, this is a legal arrangement which applies in exceptional circumstances. This is very much associated with respect to human dignity. So, art. 12/1/a and 12/4 collectively provide that the employer needs to give favorable condition to the employee. Lecture 8-Tuesday, August 10, 2021. Last class, we were discussing the rights and duties of the parties. Accordingly, we’ve started to discuss the obligation of the employer. There are also serious obligations of the employee. The positive obligations of employee are spelt out under art. 13 and the negative ones are given under art. 14 (2). Accordingly, the employee bears the following duties.  Duty of personal service: The first duty of the employee is the duty of personal service. The employee is expected to personally perform what she has pledged under the contract of employment. There fore, she is not allowed to put another person in charge of her job position as of right. Actually, personal service is not only duty; it is a sort of right. Because, the employee is not obliged to find a substitute employee for his position in case she fails to personally perform the service.  Duty to obey lawful orders: The other duty of the employee is duty to obey lawful orders. You remember that one of the decisive elements of employee-employer relationship is working under the authority of the employer. Employer-employee relationship is somehow vertical or superior-inferior relationship. Although it is apparently a contractual relationship in which the parties transact under formal equality, it is more vertical relationship where one of the parties has a duty to to obey the instructions of the other.  Duty of care and diligence: Art. 13 (3) of the labor proclamation imposes a duty on the employee To handle with due care all equipment and tools entrusted to him for work. This duty presupposes that the employer is duty bound to supply with all necessary materials. Sometimes, when they are dissatisfied, the employees tend to revolt against the tools and equippements that the employer prepares for work in  order to put adverse effects on the employer. This is a corresponding duty of the employee to that of the employer provided under art. 12 (1) (b) as: An employer shall in addition to special stipulations in the contract of employment have the following obligations: B) unless otherwise stipulated in the contract of employment, to provide the worker with equippements and materials necessary for the performance of the work The duty of fitness: Employee is employed to produce. Hence, she should be in a fit physical and mental condition. Therefore, the employee cannot appear on her work place under the influence of alchol or drug. In fact, it may be better to go to serve in a nighte clubs under alcoholic influence. However, this is not the case for all other services. Other services require stable and healthy mental condition. The duty to lend aid: Like the criminall law, the employment law also requires the employee to lend her aid within her premises in case her aid is required without exposing herself to risk. Sometimes, when they are not good with their employment relationship, the employees try to work to the letters of the contract. So, they neglect any particular service outside their job description. However, the law requires the employee to lend her aid so long as it doesn’t endanger her life. Duty of loyalty (duty to render honest and faithful service): In some situations , the employer may not be aware of some issues which the employee may be. the employee should inform the employer so that the employer can take all necessary measures. There is also an implicit duty on the employee not to divulge confidential informations which she acquires in the course of her work to third parties. For example, the employee should refrain from divulging trade secrets of his employer to third parties (specially rivals). Because, this may adversely affect the interest of the employer. The duty to comply with work rules: work rules are made by the employer to organize working conditions. The employee is obliged to comply not only with the law, but also with the work rules of her employer. However, this duty is controvertial in some cases. It is questionable that as to what extent should the employee is required to comply with work rules. Some employers conduct search at the gate of the working premise. On the other hand, the employees tend to reject to obey such work rule claiming that it is inconsistent with their right to privacy and the right to be presumed innocent. Does this work rule violate the right to privacy and presumption of innocence? The other thing is dress code. In some companies, employers prescribe dressing code. Some of them oblige employees to wear some sort of uniform. In such arrangements, individual employees may be unhappy with such standards set by employers. They may raise the issue of interference with religious sphere. Because, the way the uniform is designed may be in contravention with their religious prescription. In addition to designing a specific uniform of all workers, some employers may prescribe certain types of wearings and other appearances like cutting the hair, bearding of Etc. this trigger the thorny issues of privacy and religious freedom. How do you consider this? Courts approach these controvertial issues in divergent ways and tests. One of such tests is what we call necessary and rational test. They assess whether such measures are necessary or not and whether there is legitimate business purpose to attain with such measures. For example, in respect of establishing search at the gate, there is a legitimate purpose of safety. If the work place is a place where many people work, the employer may be allowed to take such precautionary measures to protect the safety of the people. For those companies that conduct search during checking out, the purpose should be assessed from the same perspective. Obviously, the employers may have a legitimate purpose to protect their property rights. With respect to dressing code, there is a reason to set such standard to advance business interest of the employer. For example, sometimes, it may be to exhibit a company branding. For instance, There is some unique wearing that the Ethiopian airlines requires employees to follow. It has something on the psychology of the customers at large. Special dressing code may also serve to identify the employees of a given company from other individuals who appear around the premise of the work place. So, a stranger may easily identify the employees and be able to seek informations about the company. This also enables the employer to supervise his employees. The other test is the rationality test. For example, search must be conducted by same sex. Searchshould also be applicable to all; it should be none-discriminatory. In addition, the manner of search should also not be contrary to the personal integrity of employees. For example, in some work places, there are guardians who simultaneously serve as a gardener. They tend to conduct search without cleaning their hands soked up with thick mud. This clearly degrade the personal appearance of the employee. Therefore, they should be searched with rational and favorable manner. The “rationality test” require to take all necessary precautions in order to avoid gross disgust that the employee may face at the time of search. The prescription of dress code should be neutral; it should not show any religious favoritism. Prohibitions (arts. 14/1 and 14/2 of the proclamation). In some literatures, these are called “common mistakes in labor relations”. The above two provisions contain acts may be either by the employer (art. 14/1), and or by employees (art. 14/2). Sometimes, employers may take some retaliatory measures against the employees. This could take form of retaliatory termination or other measures short of termination. Such measures could be taken by the employer due to several reasons. For example, it may be because the employee appeared before the court of law to testify against the employer in a suit brought against the employer by another employee. This is what is prohibited by art. 14 (1) (a). Discrimination: the other prohibited act is discrimination. Art. 14 (1) (b) provides as: It shall be unlawful for an employer where any of the following acts are committed by the employer or a managerial employee to: b) Discriminate against female workers, in matters of remuneration, on the ground of their sex orientation. This provision doesn’t cover all grounds of discrimination. It doesn’t even cover all sex- based discriminations. For example, if you go to the construction service area, both sexes render more or less a sort of comparable service the whole day. But, the industries tend to pay about 400 birr for the men workers and 300 birr for women workers per-day. Actually, since this discrimination is an international problem, there is an ILO convention to prohibit such acts. This convention is the ILO convention, The equal remuneration convention no. 100/1951. This convention has been ratified by the Ethiopian parliament and hence, it is the integral part of our law. Interference with the freedom of association: after the widely accepted permission of freedom of association of the employee, Another problem emerged which affected this right of employees. This is what is called “yellow dog contract”. employers tend to draft a contract the content of which is mainly loyalty oath. In such loyalty oath, the employee committes herself not to join a trade union or to withdraw if she has already joined or to avoid any participation in a trade unionin. Earlier times, if the employee is found to have joined trade union irrespective of this agreement, it was considered to be a breach ofcontractwhich used to be a groundof dismissal. at a later stage, various courts came to observe that such agreement is null and void; because, they violate a fundamental right of the employee. The women employees also used to agree with their employers not to enter in to marriage relationship and conceive. Interference in to the freedom of association of employees could also be in the form of advise, persuasion Etc. So, it may not necessarily be termination or other measures made by employer, but it could also involve putting some sort of pressure on the employee to cease to be a member of a given union. The Other problem is anti-union discrimination. Similarly, there is the ILO convention to regulate this problem. It is entitled the ILO convention on the freedom of association and collective bargain, convention no. 98/1949. This convention has provisions that prohibit interferences with the freedom of association. This in turn protects the unionists, be it members or union officials from discrimination by their employer. This convention has also been ratified by Ethiopia. There are many grounds of discrimination. So, prohibition against discrimination in general is necessary. Discrimination based on race, political outlook, religion, disability Etc is prohibited. The source for this provision is discrimination in employment and occupation convention , convention no. 111 while convention no. 100 prohibits discrimination as regards to payment. Many of the factors of discrimination is unchosen and unchangeable. For example, sex and ethnicity are not chosen. In fact, modern technology tends to falsify our gender. However, at least in Ethiopian level of technology, sex still seems to remain unchosen. Some factors are not only unchosen, but also immutable; it is not possible, as to the instructor, to changeone’s ethnicity and sex. So, it is unfair to be victim due to a factor which we didn’t choose or we couldn’t change. If Someone is discriminated on the basis of her behaviour, for example, she can reconsider about it. Furthermore, it has no relevance on the employment relation; it doesn’t directly affect the required job function. In employment relation, The important things are productivity, integrity and competence. “But, there is no scientific relationship between ‘ethnicity’ and productivity”. There is also no scientific relationship between sex and integrity. Lecture 9-Thursday, August 12, 2021. Last class, we discussed the applicability of some constitutional principles like privacy and presumption of innocence in labor engagement. These are not applicable in the abstract. Maximum privacy is expected when you are at home. But, in public space since there are interest of other parties, its should be limited to protect those legitimate interests of others. So, any consideration of privacy must be reasonable expectation of privacy. With respect to discrimination, all discrimination may not be invalid. There are some discriminations that can pass the test of prohibition. In labor relation, there is what we call “inherent job requirement” or sometimes called “genuine occupational qualification”. Certain jobs may require certain qualifications. If someone cannot satisfy such fundamental qualifications, she may not be competent for a given jobposition. It could also be that certain job may require certain sex. For example, in performing certain artistic work, the producer or director may require specific sex. In that case, there may be an element of discrimination. This may be justified by genuine occupational requirement. But, this is an exceptional reule; it should be narrowly interpreted. In fact, the ILO convention on this issue has two elements to be satisfied in case of inherent job requirement. One is that any inbuilt requirement must have manifest relationship to the employment in question. The stipulated requirement should have a clear relevance to the job position. Because, it may give room for abuse thereby implementing perpetual discrimination. Second, any tests used to determine suitable candidate must measure the person for the job and not the person in the abstract. The tests should be directed to the job, not to the abstract personality of the individual. Otherwise, it would be challenged. The other exceptions include behaviourand productivity. The employer may reward his productive employee more generous than other employees. The same is true with behaviore. In some cases, the grounds of discrimination are condemned since they are unchosen and unchangeable. But, in respect of productivity and behaviour, it must be allowed; Because, as we’ve discussed in our previous class, they can be reconsidered by the individual. Another ground of discrimination which fall under this exception is citizenship. Almost all countries prefer their citizens to get employment in the labor market. It is when a particular qualification is not available in the domestic labor market that they seek an outside candidate. For instance, in the Eu, the members of the EU compete equaly within the territory of the members due to the treaty between them. This is a legitimate policy concern of the state unless they give it away with another arrangement. Whathappens when these conditions are violated? The answer for this question depends on which rule Is violated. But generally, violations of any of such articles may entail sanction on the employer. For instance, we need to read art. 14/1 with art. 185/2/c of the proclamation. Under the previous labor proclamation, it was somehow flat rate penalties imposed by the law. The penalties were imposed irrespective of company structure, the economic capability, the size of an enterprize Etc Up to 1200 birr.The labor law was applicable to from single employer to ahuge company that employs several employees. The current proclamation disaggregated the punishment; the above factors will be taken in to account under this proclamation. Art. 185/2 of the proclamation provides as follows: An employer who: a) fails to fulfill the obligations laid down in Article 12(5) of this Proclamation; b) fails to keep records prescribed by this Proclamation or other legal instruments issued hereunder or failed to submit them in due time or when so requested; c) violates the provisions of Article 14(1) of this Proclamation; or d) terminates a contract of employment in violation of the provisions of Article 26 (2) of this Proclamation; shall by taking in to account its economic and organizational standing and the manner the fault was committed will be fined from Birr 10,000 up to Birr 20,000 if the violation is for the first time, from Birr 20,000 up to Birr 40,000,if it is committed for the second time and from Birr 40,000 –Birr 60,000,if it is committed for the third time. Whereas if the act is committed more than three times may result closure of the under taking. The economic capability, the size of the company and repetition of the fault is to be taken in to account. In addition to this, some other measures may be taken in certain cases. For example, if the employer unlawfully dismisses the employee from his job position due to the fact that the employee has instituted a case against him, the court may award this individual a remedy to be reinstated to her position (art 43/1). The criminal trak is also there with other labor remedies. One of the measures under the criminal code is what is stipulated under art. 601 of the criminal code which punishes the employer in case she interferes with the freedom of association of her employees. But, art. 185 is not technically criminal. It is a labor inspection that handles it and it would be labor bench of a regular court as opposed to the criminal bench. When we speak of misdeed of the employer, it includes the misdeed of the management staff. Earlier, the law was formulated in a way it highly emphasizes the “employer” (aseri). This led some judges to hold that the prohibitions stipulated by the law in such legal formulation would be violated only by the employers; they excluded the management staff from such responsibility. We have two types of interpretation; interpretation to the letters of the law and interpretation to the spirit of the law. Sometimes, our judges tend to be mechanical. The law must be interpreted in light of its spirit. The current proclamation included some phrases to avoid such confusions. Art. 14 (1) of the proclamation begins as : “it shall be unlawful for an employer where any of the following acts are committed by the employer or a managerial employee to”. In case the manager and owner are different, the law assumes the violations are committed by the employer irrespective of the fact that they may be committed by the managerial employee. The proclamation imposes a duty both on the employer and the manager. With regard to discrimination, there is a trend that favors women for the job position of secretary. The vacancy announcement for such positions clearly stipulate that women are needed. Could this be discrimination on the basis of sex? Affirmative action is a constitutional principle which allows favorable treatment of some social groups like women, persons with disabilities Etc. Because, it is believed that these social groups have been marginalized by the society and they need an affirmative action to redress such unjust treatment. There are new additions under the current proclamations like sexual violence and sexual assault. The employee also bears duty not to violate some prohibitive rules (art. 14/2 of the proclamation). One of such duties of the employee is a duty to refrain from intentional act which endanger the life of the people at work place. In one case, a teacher corporally punished her student. Consequently, she was accused of violating the above duty, enshrined under art. 14/2/a. The second prohibited act is a theft or breach of trust. If the employee takes the property of the employer without the permission of the employer, she breaches such duty. The other is making use of falsified document. There was a historical reason to incorporate this rule. The federal supreme court cassation division has rendered a binding interpretation as to the interpretation of this duty under the previous proclamation where there were no additional provisions in the current one. This case was between Ato Bereket T/mariam V. Filwiha service PLC, May 4, 2001 (EC), Cassation File no. 39543, Vol. 8, P. 200. In this case, certain employer wanted to employer any one who is able to make icecream. Following the vacancy announcement, certain applicant competed and by adducing a document that shows the fact he was working for another employer in rendering the same service and employed upon his complaint. Later, it was discovered that he had no requisite expertise to make icecream. The employer began to question the expertise of this employee. Hence, he organized and sent a committee whose task was to find out whether this employee was serving the alleged employer. The alleged employer responded that he didn’t provide such service at all. As a result, the employer terminated the contract of employement with this employee. The employee took the case to the court claiming that his contract of employment was unlawfully terminated. In responding to the suit against him, the employer invoked art. 27/1/c of the prior proclamation, which provides that the employer may terminate a contract of employment without prior notice if the employee committes Deceitful or fraudulent conduct in carrying out his duties. Do you think this art. Is relevant to the case at hand. The first instant court held that this invoked provision regulates a deceitful in the course of employment relationship. However, the case at hand doesn’t fall in this ambit since what the employee allegedly committed is a pre-employment act. Hence, it decided that the employee should be re-instated with his payment of 4 months salary. The appellate court affirmed the decision of the lower court. The employer further appealed to the cassation bench claiming that although the employee falsified his document at the pre- employment stage, his deceitful practice continued even after he was employed. The employee made icecream without requisite expertise which should fall under the meaning of art. 27/1/c of the proclamation. Accordingly, the cassation bench dismissed the decision of the lower courts and decided the case in favor of the employer. This prompted the legislator to decide to regulate misbehaviors that may be committed at the pre-employment stage in order to avoid such problem of interpretation. What if the employee passes the employement test with falsified document, later develops expertise for his job position and is discovered later that the falsified document to be employed? Would this be a ground to terminate a contract of employment? As far as the employee properly renders the required service, it is highly unlikely that the employerwill tends to take such measure. Because, the employee is considered to make rational economic decision. The provision on sexual violence and sexual assault were not included under the previous proclamation. In cases involving sexual violence and sexual harassment, therefore, art. 27/1/f used to be invoked. This sub-article is about being responsible for brawls or quarrels at work. Courts used to reject such provision to apply to such cases since committing brawls or quarrels are couldn’t be sexual violence or sexual assault. On the other hand, in industrial parks, such acts increased too much. This mainly attributed to the fact that illiterate females are more numerous than the male employees in industrial parks. These female are employed to serve during a night shift which increases sexual violence or sexual harassment. The above article outlaws the violence aspect. Then, it is believed that it falls under vertical responsibility of the employers when it comes from art. 14/1 provisions and the horizontal acts will fall under art. 14/2/h of the proclamation. There