Contract of employment and Employment relationship.doc

An employee according to the employment act 2007 is a

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An employee according to the Employment Act 2007 is “a person employed for wages or a salary and includes an apprentice and indentured learner.” An employer is “any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such persons, public body, firm, corporation or company.” Regulation of the Individual Contract of Service Hugh Collins in his article “Legal Responses to the Standard Form Contract” [2007] Industrial Law Journal states that there are two particular regulatory techniques that have been employed to respond to the “standard form contract” which in practice is a UNILATERAL determination of the obligations of the parties by the employer. Standard form contracts (even in the area of 13
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consumer protection) tend to limit the employer’s liability or at least limit the employee’s rights. One may argue that these “unfair” standard form contracts can be dealt with by market forces i.e. competition amongst employers that would cause them to offer better terms in order to attract and maintain employees. The disadvantage of taking such an approach is that some of the “benefits” may be contained in documents which are not readily available to the employee at the time of contracting e.g. some benefits and allowances. Question: do the statutory requirements remedy this situation? Thus Collins argues that there are two particular regulatory techniques that have been employed to remedy the unequal bargaining power that employees have and the unfairness of the standard form contract. These are: Terms implied by law into contracts of employment – these implied terms play a gap filling role. Any gaps in the agreement can be filled by implying the intentions of the parties or by reference to customs of the trade or the workplace or terms implied by law. Collins sets out two main functions of implied terms: - firstly they assist in the interpretation of express terms and secondly they assist in the control of the content of express terms. Statutorily conferred powers for the invalidation of unfair terms in contracts. 14
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The Contractual Basis of the employment relationship The employment relationship is based on a contract OF services and not a contract FOR services. Under the Employment Act 2007, a contract of service means “an agreement, whether oral or in writing, and whether expressed or implied, to employ of to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learning but does not include a foreign contract.” FORMATION OF THE CONTRACT OF SERVICE Just like any contract, the basic ingredients of a valid contract have to be contained in the contract of employment. These are a valid offer and acceptance; intention to enter into legal relations; consideration passing between the parties; capacity to enter into contractual relations; consent of the parties; legality of the subject matter and the objects of the contract. In general, there are no special formalities that have to be entered into to form a contract of employment. That means 15
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that they can be either oral or in writing. However under the
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  • Tribunal, Simon Deakin, Ms Sarkar

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