What does the concept “freedom to contract” entail? Does this mean that the employer and the employee have complete freedom to agree on any terms and conditions of employment that suit them? Parties to an employment contract do not have complete freedom to contract, because the common law imposes certain duties on both parties, and various statutes limit the freedom of the parties to contract. (Study paragraph 17.2.4 of the textbook.) 2.5 THE DUTIES OF AN EMPLOYER 2.5.1 To remunerate the employee The duty to remunerate the employee is the primary duty of an employer. Minimum remuneration standards may be set in collective agreements and by sectoral determinations. The employees covered by the minimum remuneration standards must be paid the remuneration as set out therein or an amount that is higher. If the agreement between the parties does not provide for the payment of remuneration, the court may find that there is no contract of employment or that the employee is entitled to a reasonable wage. (Study paragraph 184.108.40.206 of the textbook.) 220.127.116.11 The “no work, no pay” rule The general rule in terms of the common law is “no work, no pay”. The BCEA, however, does set minimum conditions with regard to paid leave. (Study paragraph 18.104.22.168.1 of the textbook.)
CLA1502/1 45 STUDY UNIT 4: Labour law 22.214.171.124 Unjustified enrichment According to this principle, one may not be enriched at the expense of another. (Study paragraph 126.96.36.199.2 of the textbook.) 188.8.131.52 Payment of the remuneration An employee is normally paid with money. An employee may, however, be paid in kind (in natura), for example, providing the employee with accommodation and food. (Study paragraph 184.108.40.206.3 of the textbook.) 2.5.2 To receive the employee into service An employer has an obligation to receive the employee into service, and failure to do this constitutes a breach of contract. An employer does not have a general duty to provide the employee with work, unless the employee is paid on commission which is dependent on the provision of work. (Study paragraph 220.127.116.11 of the textbook.) 2.5.3 To provide safe working conditions The employer has a duty (common law and statutory) to provide the employee with safe working conditions, safe machinery and safe tools. (Study paragraph 18.104.22.168 of the textbook.) 2.5.4 To deal fairly with employees It is important to note that various pieces of labour legislation contain provisions prohibiting victimisation of an employee by an employer for exercising a constitutional or statutory right. (Study paragraph 22.214.171.124 of the textbook.) 2.5.5 To comply with statutory duties Employers are obliged to comply with their duties imposed by applicable legislation. (Study paragraph 126.96.36.199 of the textbook.) 2.5.6 Vicarious liability In terms of the common law, an employer can be held liable by a third party for the unlawful or delictual acts committed by its employees during the course and scope of their duties. There are three requirements to prove vicarious liability: (a) a contract of employment (b) unlawful conduct (c) employee acted in the course and scope of employment (Study paragraph 188.8.131.52 of the textbook.)
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