Contract between the Employer and Employee - Coursework Example

Contract between the employer and employee Name Instructor’s Name Date Table of Contents Introduction 3 Employer employee contract 3 Statute 5 Common law 7 Conclusion 8 References 9 Introduction Human resources refer to the workforce that makes up the organization (Stone, 2008). The relationship between the employer and employee is spelt out in the contract that exists between these two parties. The contract spells out the conditions, obligations and the rights that the employer and employee have (Rees, 2009). This contract defines the terms of engagement between an employer and the employee and the success of this relationship is based on the mutual understanding of these terms (Chand, 2003). The legal implications of a contract requires that the human resource function be well vast with the labour laws and legislation that may affect these labour laws which tend to have an impact on the employment contract that the organization may draft. Thus, the aim of this paper is to explore the idea of contract between the employer and the employee. Employer employee contract The ever-changing world of work has necessitated the transition of labour and employee relations. This has led to regulation of the employers and employees alike (CCH Australia Ltd., 2009). The economic pressures of trade have led to the protection of labour and the adoption of policies that ensure a healthy compromise between the employer and employee because without regulation exploitation sets in. An employment contract just like any other contract is a contract between two parties in this case the employer and the employee (Latimer, 2009). The employer, in this case, is the person that provides the employment and the employee the person who exchanges his time and skills for a wage. It contains the following items Terms of employment Roles, duties, and responsibilities of the employer and employee Confidentiality regarding matters which when leaked out will be detrimental to the company such as pricing A non-compete clause which forbids employees to engage in business or interests that compete directly with the employers. Provision for termination Monthly salary plus other benefits The terms of employment include the time schedules and work times. It describes to the employees the reporting times and their work schedules. The roles and responsibilities describe what each party in the contract is supposed to do (Chand, 2003). The employees are supposed to complete their responsibilities in a timely manner, the employer is to ensure the safety, and well being of the employee is guaranteed while in the workplace (Judge and Gennard, 2005). Confidentiality is for the employee to ensure that he does not reveal sensitive matter regarding the company to competitors such as employees and customer lists. The non-compete clause is for employees to not to engage in activities that might be deemed to be in competition with their employer. It ensures that employees conduct themselves ethically. The provision for termination lays down the conditions for termination of employment for example inability to perform duties or low company profits (Chand, 2003). Items that do not fall here are considered to be under common law and this gives the employees rights of the inventions or ideas unless the employee was hired specifically for that purpose (Latimer, 2009). The employment contract gives the employers and employees the right for reprieve if there is a breach. The compensation clause in the employment contract outline the salary scale, retirement and other employment benefits. The employee is guaranteed of his right should the employer decide to change the employment contract. Statute It is the written will of the legislature in accordance with the constitution. The house has provided for different legislation that helps in the regulation of labour in the country. The rights of the employees are protected under statute. It has done by providing for the formation of employment tribunals that arbitrate in some of these cases (Vettori, 2007). The complaints by employers and employees can be settled in the court of law or in the tribunals. Failure by employers to recognize the statutory rights of employees are taken to the employment tribunals where the proceedings are faster. Employees have the option of taking their disputes to the civil courts or the tribunal (Rees et al. 2009). The tribunal comprises of a chairperson who is legally qualified and two lay people representing both sides of the industry with experience in employer employee relations. The employment contract is a legally enforceable document which when breached a person can sue for damages. The employment contract includes implied terms and terms imposed by statutory regulations (Freedland 2003). Instead of direct legislation, the Australian government has opted to use tribunal to resolve employer employee disputes. Stone (2008) identifies the sources of legal obligations concerning employment in Australia as: Wages that are the basic obligation of the employer to pay the employees for the work they have done. Expenses - employers should reimburse their employees for the expenses incurred in the course of their work. Providing work - though the employee is not obligated to provide work he is obligated by the law to pay the employee if the employee is willing and available to work as instructed. Providing a safe and healthy workplace - the employer is obligated to provide his employees with adequate safety gear if the nature of work is hazardous and may cause serious injury to the worker. Proper ventilation and an environment that is safe and healthy. Providing staff with protection from discrimination and harassment - an environment where there is mutual respect among the members of staff is the responsibility of the employer. Protecting the privacy of his staff - personal records of the employees should be kept in a safe place to protect the privacy of the employees. It is the responsibility of the employer to ensure that records medical or otherwise are kept safely. Statutes ensure that there is equality in employment and protect against discrimination based on gender, age or race (Freedland, 2003). These agreements were introduced for negotiations within specific organizations. The statutes are: Australian workplace agreements, which is between an employer and an individual. Certified agreements which exist between an employer and a group of employees Fair awards act that specifies the minimum wage that employees in particular industries in Australia receive. Australia’s labour reforms have created independent bodies that oversee the workplace relations system. Common law It is law as set by precedence in the courts. Judges through the rulings they make in court develop it. The decisions made by precedents bind future courts in such decisions. The contract of employment has implied terms of common law, which are enforceable. Under common law an employee has no legal redress and so if dismissed because of misconduct he forfeits his rights under that contract. The jurisdiction of common law is damages to claims of personal injury, breach of contract claims regarding property rights and intellectual property and claims relating to accommodation (Freedland, 2003). Common law distinguishes between a self employed person and an employed person this because of the difference in the contract. Self-employed persons are employed under the contract for service while those employed are employed under the contract of service (Stone, 2008). This distinction is for taxation purposes only. The employer is responsible for his employees his relationship with the self-employed persons is different. With the contract for service an employee is in business on his own volition and is directly accountable to the Australian taxing authority to payment of tax and national insurance contributions. The self-employed person submits his annual accounts for scrutiny (CCH Australia ltd 2009). The benefits accrued to employees under the common law do not extend to independent contractors and other self-employed persons working on the employer’s premises. The only benefits that they receive are the health and safety (Chand 2003). Conclusion Successful businesses are those that put the welfare of their employees first. Maintaining a harmonious relationship between the employer and employees determines how well an organization performs. Different laws govern the relationship between labour and management and employers and employees alike are required to abide by these regulations. The employment contract safeguards the rights of employees regardless of which law is being applied. The statute and common law protect the interests of the employees. These legislations all serve to regulate the labour industry by preventing rogue employers from getting away with whatever they want. The house has enacted legislation that protects workers in terms of wages and their job security. This is because the statute law has provision for the minimum wages that employers can pay their workers in certain industries. This ensures that their employers do not exploit the workers. The tribunals that also come to arbitrate in the employer employee disputes are a creation of statutes. Common law also guarantees that the employees are protected. The employment contract is enforceable under common law as it is under statute law. The different contracts employment contracts exist in by common law and therefore employees are categorized according to the contract the employees have. There those that are self employed under the contract of service and under the contract for service. The contract for service are regarded as self employed and therefore not entitled to the employee benefits that those employed under the contract of service are entitled to because a contract of service is regarded as an employment contracted which is legal instrument t that is enforceable under the statute law and common law. References CCH Australia Ltd. 2009. Australian master tax guide 2009. Sydney: CCH Australia ltd. Chand, P. 2003. Waund’s Employment Law: The Practical Guide for Human Resource Mangers. London: Kogan page publishers. Freedland, R. 2003. The Personal Employment Contract. Oxford: Oxford university press. Judge, G. and Gennard, J. 2005. Employee Relations. London: CIPD Publishing. Latimer, P. 2009. Regulation of Business: Australian Business Law. New South Wales: CCH Australian Institute. Latimer, P. 2009. Sources of the Law. Australian business law. New South Wales. CCH Australia Limited. Rees, N. et al., 2009. Australian Anti-Discrimination Law: Text, Cases and Materials. New South Wales: Federation press. Stone, R.J. 2008. Human Resource Management. Canberra: John Wiley and Sons. Stone, R.J. 2008. Managing Human Resources: An Asian Perspective. New York: Wiley and Sons. Vettori, S. 2007. The Employment Contract and the Changed World of Work. New York: Ashgate Publishers. Read More