Labour Law Handbook

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Labour Law Handbook (By Ojijo)

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Labour Law Handbook(Employment Contract, Terms Of Employment, Dispute Resolution, Workers Rights, Contracts Of Service)

FIRST EDITION, 2012ISBN: 978-9966-123-60-2

Copyright © 2010, Ojijo. All rights reserved. This work is copyrighted by the author. Noparts of this publication maybe reproduced, stored in a retrieval system, or transmitted in any

form, without permission of the publisher.

Other Law Pronto Training Manuals

(ISBN 978-9966-123-50-3) Business Transactions & Contracts Law Handbook(ISBN 978-9966-123-51-0) Family Law Handbook(ISBN 978-9966-123-52-7) Intellectual Property Law Handbook(ISBN 978-9966-123-56-5) Alternative Dispute Resolution Law Handbook(ISBN 978-9966-123-57-2) Real Estate Law Handbook(ISBN 978-9966-123-58-9) Civil Litigation Law Handbook(ISBN 978-9966-123-59-6) Energy Law Handbook(ISBN 978-9966-123-60-2) Labour Relations Law Handbook(ISBN 978-9966-123-61-9) Administrative Law Handbook(ISBN 978-9966-123-62-6) Environmental Law Handbook(ISBN 978-9966-123-63-3) Criminal Litigation Law Handbook(ISBN 978-9966-123-21-3) Ojijo’s Financial Services Law(ISBN 978-9966-123-25-1) Rich Lawyers, Poor Lawyers - Law Firm Management Handbook(ISBN 978-9966-123-22-0) Luo Jurisprudence-Theories, Institutions and Procedures of Law and Justice (Introduction to Law & Jurisprudence)(ISBN 978-9966-123-48-0) Legal Rhetoric- A Guide to Legal Writing, Legal Arguments & Legal Interpretation(ISBN 978-9966-123-00-8) Policy & Legal Issues in E-Commerce & E-Governance (ICT Law)

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OJIJO’S 49 BOOKS

FINANCIAL LITERACY BOOKS1. Sell Something-5 Steps to Entrepreneurship (Bible for Entrepreneurs,

Entrepreneurship Trainers, and Business Coaches)2. Successful Saccos - Managers' Guide to Acquire, Retain and Grow Membership, Savings

and Assets3. Making Money Together: Ojijo’s Investment Club Manual4. Making My Child Financially Intelligent: Money Lessons by Age Group (from 3-13yrs)5. Invest: Ojijo’s Guide to Financial Instruments & Alternative Investment Products6. Retire Happy: 21 Questions to Plan My Retirement7. 69 Ways to Make Extra Money While Keeping My Day Job8. What Can I Sell? 101 Business Ideas for Youth in Africa 9. Double Your Money- From 100 shillings to 100 million in 100 days

PERSONAL BRANDING BOOKS10. Stupid Writers: Ojijo’s Guide to Writing Articles, Reports, Plans, Profiles &

Proposals11. Talanta: Ojijo’s Guide to Identifying, Developing & Selling My Talent 12. This Is How To Treat A Man (Fathers, Husbands, Lovers, Sons, Brothers)13. Soft Sweet Words: Romantic Whispers to My Woman14. Cause Action: Ojijo’s Public Speaking Handbook15. The Gift of E11even Moves to Make Me Wealthy16. Seventy-7 Moves of a Sexy Woman17. Self Discipline - What, Why & How18. 99 Ways to Make People Laugh

LAW BOOKS19. Business Transactions & Contracts Law Handbook20. Family Law Handbook21. Intellectual Property Law Handbook22. Alternative Dispute Resolution Law Handbook23. Real Estate Law Handbook24. Civil Litigation Law Handbook25. Energy Law Handbook26. Labour Relations Law Handbook27. Administrative Law Handbook28. Environmental Law Handbook29. Criminal Litigation Law Handbook30. Ojijo’s Financial Services Law31. Rich Lawyers, Poor Lawyers : Law Firm Management Handbook32. Luo Jurisprudence: Theories, Institutions and Procedures of Law and Justice

(Introduction to Law)33. Legal Rhetoric: Ojijo’s Guide to Legal Writing, Legal Arguments & Legal

Interpretation34. Policy & Legal Issues in E-Commerce & E-Governance (ICT Law)

POLITICS AND RELIGION35. Why Did Hitler Kill The Jews?36. Politics of Poverty: The Odinga Curse to the Luos37. Open Religion: My Religion is the Best Religion38. Garveyism: The Philosophy of Marcus Garvey39. 100 Upright Men: World’s Greatest Revolutionary Politicians40. The Mungiki: Terrorists, Victims, Saints: Three Sides of the Same Coin!41. This Is How To Manipulate Voters: Ojijo's Guide for Politicians and Aspiring

Politicians!

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Table of ContentsList of Authorities........................................6Introduction to Labour Law.................................7

Definitions & Scope of Employment Law...................................................................7Sources Of Employment Law....................................................................................... 9Institutions in Employment Law (Legal Systems)....................................................18Legal Documents & Agreements in Labour Law.....................................................21

Dispute Resolution........................................28Disputes & Dispute Resolution..................................................................................28Types of Disputes....................................................................................................... 32Labour Dispute Resolution........................................................................................35Elements of Effective Dispute Resolution Methods.................................................41Types of Dispute Resolution Methods......................................................................42International Litigation, Conflict Of Laws................................................................52International Arbitration........................................................................................... 54National Dispute Resolution Institutions.................................................................59International Dispute Resolution Institutions.........................................................63

Employment Contracts......................................65Elements of Employment Contract, Contract of Service.........................................65Termination Of Employment.....................................................................................70Employee Misconduct, Dismissal and Appeal.........................................................80Contract For Services.................................................................................................84Contract for Employment Provisions.......................................................................84Collective Bargaining................................................................................................. 90Labour Rights............................................................................................................. 96Compensation.......................................................................................................... 102Industrial Actions..................................................................................................... 105Trade Union.............................................................................................................. 114Workers Rights......................................................................................................... 117Employment Benefits............................................................................................... 123Employee Taxes........................................................................................................ 127Retirement Benefits.................................................................................................. 133Social Security.......................................................................................................... 139Staff Provident Funds..............................................................................................143

Index....................................................146


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Labour Law Handbook (By Ojijo)List of Authorities

StatutesEnglish Arbitration Act, 1996...............................51Federal Arbitration Act.....................................51UNCITRAL Model Law on International Commercial Arbitration. .51RulesIBA Rules on the Taking of Evidence in International Arbitration...............................................50

ICDR Guidelines for Arbitrators Concerning Exchanges of Information...............................................51

TreatisesArab Convention on Commercial Arbitration...................48CAFTA...................................................49, 50Energy Charter Treaty...................................31, 49European Convention (Geneva, 1961)..........................48Hague Service Convention (1965).............................45ICSID Convention........................................48, 49Inter-American Convention on International Commercial Arbitration...............................................47

Moscow Convention (1972)....................................48NAFTA...............................................49, 50, 56New York Convention.....................................47, 48Panama Convention...........................................47The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.........46

Washington or ICSID Convention..............................48


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Introduction to Labour Law

DEFINITIONS & SCOPE OF EMPLOYMENT LAW

definition of labour law, employment law Labour law (also called employment law) is the body of laws,

administrative rulings, and precedents which address the legalrights of, and restrictions on, working people and theirorganizations. United Kingdom labour law involves the legalrelationship between workers, employers and trade unions. Assuch, it mediates many aspects of the relationship betweentrade unions, employers and employees. Employment laws relatedto unionized workplaces are differentiated from those relatingto particular individuals. In most countries however, no suchdistinction is made. However, there are two broad categoriesof labour law.

labour law (collective)First, collective labour law relates to the tripartite relationship between employee,

employer and union.

labour law (individual)Second, individual labour law concerns employees' rights at work and through the

contract for work. The labour movement has been instrumental in the enacting oflaws protecting labour rights in the 19th and 20th centuries. Labour rights havebeen integral to the social and economic development since the IndustrialRevolution.

Labour law (standards), Employment standards Employment standards are social norms (in some cases also technical standards) for

the minimum socially acceptable conditions under which employees or contractorswill work. Government agencies (such as the former U.S. Employment StandardsAdministration) enforce employment standards codified by labour law (legislative,regulatory, or judicial).

scope of labour lawLabour law arose due to the demands for workers for better

conditions, the right to organize, or, alternatively, theright to work without joining a labour union, and the


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Labour Law Handbook (By Ojijo)simultaneous demands of employers to restrict the powers ofworkers' many organizations and to keep labour costs low.Employers' costs can increase due to workers organizing to winhigher wages, or by laws imposing costly requirements, such ashealth and safety or restrictions on their free choice of whomto hire. Workers' organizations, such as trade unions, canalso transcend purely industrial disputes, and gain politicalpower. The state of labour law at any one time is thereforeboth the product of, and a component of, struggles betweendifferent interests in society.

The basic feature of labour law in almost every country is thatthe rights and obligations of the worker and the employerbetween one another are mediated through the contract ofemployment between the two. This has been the case since thecollapse of feudalism and is the core reality of moderneconomic relations. Many terms and conditions of the contractare however implied by legislation or common law, in such away as to restrict the freedom of people to agree to certainthings to protect employees, and facilitate a fluid labourmarket. In the U.S. for example, majority of state laws allowfor employment to be ‘at will’, meaning the employer canterminate an employee from a position for any reason, so longas the reason is not an illegal reason, including atermination in violation of public policy.1

One example in many countries2 is the duty to provide writtenparticulars of employment with the essentialia negotii (Latin foressential terms) to an employee. This aims to allow theemployee to know concretely what to expect and is expected; interms of wages, holiday rights, notice in the event ofdismissal, job description and so on. An employer may notlegally offer a contract in which the employer pays the workerless than a minimum wage. An employee may not for instanceagree to a contract which allows an employer to dismiss themunfairly. There are certain categories that people may simplynot agree to because they are deemed categorically unfair.

1 For example, an employee's refusal to violate law or an employee's assertion of rights.

2 e.g. In the European Union, Directive 91/533


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Labour Law Handbook (By Ojijo)However, this depends entirely on the particular legislationof the country in which the work is.3

Labour law (also called labor law or employment law) is the bodyof laws, administrative rulings, and precedents which addressthe legal rights of, and restrictions on, working people andtheir organizations. As such, it mediates many aspects of therelationship between trade unions, employers and employees. InCanada, employment laws related to unionized workplaces aredifferentiated from those relating to particular individuals.In most countries however, no such distinction is made.However, there are two broad categories of labour law. First,collective labour law relates to the tripartite relationshipbetween employee, employer and union. Second, individuallabour law concerns employees' rights at work and through thecontract for work. The labour movement has been instrumentalin the enacting of laws protecting labour rights in the 19thand 20th centuries. Labour rights have been integral to thesocial and economic development since the IndustrialRevolution. Employment standards are social norms (in somecases also technical standards) for the minimum sociallyacceptable conditions under which employees or contractorswill work. Government agencies (such as the former U.S.Employment Standards Administration) enforce employmentstandards codified by labour law (legislative, regulatory, orjudicial).

collective labour lawCollective labour law concerns the tripartite relationship

between employer, employee and trade unions. Trade unions,sometimes called ‘labour unions’.

3 In the US, under the National Labor Relations Act, a worker has no right to organize where he is considered a manager, see NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001)


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SOURCES OF EMPLOYMENT LAW

Sources of law definitionSources of law means the origin from which rules of human conduct

come into existence and derive legal force or bindingcharacters. It also refers to the sovereign or the state fromwhich the law derives its force or validity. Several factorsof law have contributed to the development of law. Thesefactors are regarded as the sources of law.

Sources of ADR law are found in various areas, but mainyl limitedto statutes, constitution, statutes, and precedents.

These are explanined below:constitution A constitution is a set of fundamental principles or established

precedents according to which a state or other organization isgoverned.4 The constitution, whether written, or not written,is the grundnorm: the main source of law in any nation. Whenthese principles are written down into a single or set oflegal documents, those documents are called a writtenconstitution. Every country’s Constitution is the documentthat outlays the principles upon which it is to be run.

Precedents, judge-made law, case lawPrecedent is one of the sources of law. The judgements passed by

some of the learned jurists became another significant sourceof law. When there is no legislature on particular point whicharises in changing conditions, the judges depend on their ownsense of right and wrong and decide the disputes. Suchdecisions become authority or guide for subsequent cases of asimilar nature and they are called precedents. The dictionaryof English law defines a judicial precedent as a judgement ordecision of a court of law cited as an authority for decidinga similar state of fact in the same manner or on the sameprinciple or by analogy. Precedent is more flexible thanlegislation and custom. It is always ready to be used.

4 The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pages, May 2005, Oxford University Press, ISBN 0-19-517077-6.


http://en.wikipedia.org/wiki/Special:BookSources/0195170776

http://en.wikipedia.org/wiki/Erin_McKean

http://en.wikipedia.org/wiki/New_Oxford_American_Dictionary

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Labour Law Handbook (By Ojijo)Customs , customary international law A custom is a rule which in a particular family or in a

particular district or in a particular section, classes ortribes, has from long usage obtained the force of law. Thedictionary of English law defines custom as a law not written,which being established by long use and consent of ourancestors has been and daily is put into practice. Custom as asource of law got recognition since the emergence ofsovereignty on the horizon of jurisprudence. It is anexemption to the ordinary law of the land, and every custom islimited in its application. They are practices that have to berepeated for a period of time.

LegislationLegislation is that source of law which consists in the

declaration of legal rules by a competent authority.Legislature is the direct source of law. Legislature framesnew laws, amends the old laws and cancels existing laws in allcountries. In modern times this is the most important sourceof law making. The term legislature means any form of lawmaking. Its scope has now been restricted to a particular formof law making. It not only creates new rules of law it alsosweeps away existing inconvenient rules.

From the definition of politician Mohamed Abdullahi Farmajo,defines legislation as Legislation (or "statutory law") is lawwhich has been promulgated (or "enacted") by a legislature orother governing body, or the process of making it. (Anothersource of law is judge-made law or case law.) Before an itemof legislation becomes law it may be known as a bill, and maybe broadly referred to as "legislation" while it remains underconsideration to distinguish it from other business.Legislation can have many purposes: to regulate, to authorize,to proscribe, to provide (funds), to sanction, to grant, todeclare or to restrict. It can also be redistricted.

Preparatory works, Legislative historyIn some legal cultures, some of the documents produced in the

process leading up to legislation are subsequently used asguidelines on how to interpret and understand an act oflegislation.


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Labour Law Handbook (By Ojijo)Treaties and declarations as sources of law The international legal promulgations, in the form of charters,

agreements, treaties, protocols, and declarations, can alsolead to change in municipal legal regime, through legaltrnaspation doctrine, domestication, codification, and ormonoist legal implementaion by member states.

AgreementsThe term "agreement" can have a generic and a specific meaning.

It also has acquired a special meaning in the law of regionaleconomic integration.

(a) Agreement as a generic term: The 1969 Vienna Convention onthe Law of Treaties employs the term "international agreement"in its broadest sense. On the one hand, it defines treaties as"international agreements" with certain characteristics. Onthe other hand, it employs the term "international agreements"for instruments, which do not meet its definition of "treaty".Its Art.3 refers also to "international agreements not inwritten form". Although such oral agreements may be rare, theycan have the same binding force as treaties, depending on theintention of the parties. An example of an oral agreementmight be a promise made by the Minister of Foreign Affairs ofone State to his counterpart of another State. The term"international agreement" in its generic sense consequentlyembraces the widest range of international instruments.

(b) Agreement as a particular term: "Agreements" are usually lessformal and deal with a narrower range of subject-matter than"treaties". There is a general tendency to apply the term"agreement" to bilateral or restricted multilateral treaties.It is employed especially for instruments of a technical oradministrative character, which are signed by therepresentatives of government departments, but are not subjectto ratification. Typical agreements deal with matters ofeconomic, cultural, scientific and technical cooperation.Agreements also frequently deal with financial matters, suchas avoidance of double taxation, investment guarantees orfinancial assistance. The UN and other internationalorganizations regularly conclude agreements with the hostcountry to an international conference or to a session of a


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Labour Law Handbook (By Ojijo)representative organ of the Organization. Especially ininternational economic law, the term "agreement" is also usedas a title for broad multilateral agreements (e.g. thecommodity agreements). The use of the term "agreement" slowlydeveloped in the first decades of this century. Nowadays byfar the majority of international instruments are designatedas agreements.

(c) Agreements in regional integration schemes: Regionalintegration schemes are based on general framework treatieswith constitutional character. International instruments whichamend this framework at a later stage (e.g. accessions,revisions) are also designated as "treaties". Instruments thatare concluded within the framework of the constitutionaltreaty or by the organs of the regional organization areusually referred to as "agreements", in order to distinguishthem from the constitutional treaty. For example, whereas theTreaty of Rome of 1957 serves as a quasi-constitution of theEuropean Community, treaties concluded by the EC with othernations are usually designated as agreements. Also, the LatinAmerican Integration Association (LAIA) was established by theTreaty of Montevideo of 1980, but the subregional instrumentsentered into under its framework are called agreements.

Charters (international law)The term "charter" is used for particularly formal and solemn

instruments, such as the constituent treaty of aninternational organization. The term itself has an emotivecontent that goes back to the Magna Carta of 1215. Well-knownrecent examples are the Charter of the United Nations of 1945and the Charter of the Organization of American States of1952.

Conventions (international law)The term "convention" again can have both a generic and a

specific meaning. (a) Convention as a generic term: Art.38 (1) (a) of the Statute

of the International Court of Justice refers to "internationalconventions, whether general or particular" as a source of


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Labour Law Handbook (By Ojijo)law, apart from international customary rules and generalprinciples of international law and - as a secondary source -judicial decisions and the teachings of the most highlyqualified publicists. This generic use of the term"convention" embraces all international agreements, in thesame way as does the generic term "treaty". Black letter lawis also regularly referred to as "conventional law", in orderto distinguish it from the other sources of international law,such as customary law or the general principles ofinternational law. The generic term "convention" thus issynonymous with the generic term "treaty".

(b) Convention as a specific term: Whereas in the last centurythe term "convention" was regularly employed for bilateralagreements, it now is generally used for formal multilateraltreaties with a broad number of parties. Conventions arenormally open for participation by the international communityas a whole, or by a large number of states. Usually theinstruments negotiated under the auspices of an internationalorganization are entitled conventions (e.g. Convention onBiological Diversity of 1992, United Nations Convention on theLaw of the Sea of 1982, Vienna Convention on the Law ofTreaties of 1969). The same holds true for instruments adoptedby an organ of an international organization (e.g. the 1951ILO Convention concerning Equal Remuneration for Men and WomenWorkers for Work of Equal Value, adopted by the InternationalLabour Conference or the 1989 Convention on the Rights of theChild, adopted by the General Assembly of the UN).

DeclarationsThe term "declaration" is used for various international

instruments. However, declarations are not always legallybinding. The term is often deliberately chosen to indicatethat the parties do not intend to create binding obligationsbut merely want to declare certain aspirations. An example isthe 1992 Rio Declaration. Declarations can however also betreaties in the generic sense intended to be binding atinternational law. It is therefore necessary to establish ineach individual case whether the parties intended to createbinding obligations. Ascertaining the intention of the parties


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Labour Law Handbook (By Ojijo)can often be a difficult task. Some instruments entitled"declarations" were not originally intended to have bindingforce, but their provisions may have reflected customaryinternational law or may have gained binding character ascustomary law at a later stage. Such was the case with the1948 Universal Declaration of Human Rights. Declarations thatare intended to have binding effects could be classified asfollows:

(a) A declaration can be a treaty in the proper sense. Asignificant example is the Joint Declaration between theUnited Kingdom and China on the Question of Hong Kong of 1984.

(b) An interpretative declaration is an instrument that isannexed to a treaty with the goal of interpreting orexplaining the provisions of the latter.

(c) A declaration can also be an informal agreement with respectto a matter of minor importance.

(d) A series of unilateral declarations can constitute bindingagreements. A typical example are declarations under theOptional Clause of the Statute of the International Court ofJustice that create legal bonds between the declarants,although not directly addressed to each other. Another exampleis the unilateral Declaration on the Suez Canal and thearrangements for its operation issued by Egypt in 1957 whichwas considered to be an engagement of an internationalcharacter.

Exchange of NotesAn "exchange of notes" is a record of a routine agreement, that

has many similarities with the private law contract. Theagreement consists of the exchange of two documents, each ofthe parties being in the possession of the one signed by therepresentative of the other. Under the usual procedure, theaccepting State repeats the text of the offering State torecord its assent. The signatories of the letters may begovernment Ministers, diplomats or departmental heads. Thetechnique of exchange of notes is frequently resorted to,either because of its speedy procedure, or, sometimes, toavoid the process of legislative approval.


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Memoranda of UnderstandingA memorandum of understanding is an international instrument of a

less formal kind. It often sets out operational arrangementsunder a framework international agreement. It is also used forthe regulation of technical or detailed matters. It istypically in the form of a single instrument and does notrequire ratification. They are entered into either by Statesor International Organizations. The United Nations usuallyconcludes memoranda of understanding with Member States inorder to organize its peacekeeping operations or to arrange UNConferences. The United Nations also concludes memoranda ofunderstanding on cooperation with other internationalorganizations.

Modus VivendiA modus vivendi is an instrument recording an international

agreement of temporary or provisional nature intended to bereplaced by an arrangement of a more permanent and detailedcharacter. It is usually made in an informal way, and neverrequires ratification.

ProtocolsThe term "protocol" is used for agreements less formal than those

entitled "treaty" or "convention". The term could be used tocover the following kinds of instruments:

(a) A Protocol of Signature is an instrument subsidiary to atreaty, and drawn up by the same parties. Such a Protocoldeals with ancillary matters such as the interpretation ofparticular clauses of the treaty, those formal clauses notinserted in the treaty, or the regulation of technicalmatters. Ratification of the treaty will normally ipso factoinvolve ratification of such a Protocol.

(b) An Optional Protocol to a Treaty is an instrument thatestablishes additional rights and obligations to a treaty. Itis usually adopted on the same day, but is of independent


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Labour Law Handbook (By Ojijo)character and subject to independent ratification. Suchprotocols enable certain parties of the treaty to establishamong themselves a framework of obligations which reachfurther than the general treaty and to which not all partiesof the general treaty consent, creating a "two-tier system".The Optional Protocol to the International Covenant on Civiland Political Rights of 1966 is a well-known example.

(c) A Protocol based on a Framework Treaty is an instrument withspecific substantive obligations that implements the generalobjectives of a previous framework or umbrella convention.Such protocols ensure a more simplified and acceleratedtreaty-making process and have been used particularly in thefield of international environmental law. An example is the1987 Montreal Protocol on Substances that Deplete the OzoneLayer adopted on the basis of Arts.2 and 8 of the 1985 ViennaConvention for the Protection of the Ozone Layer.

(d) A Protocol to amend is an instrument that containsprovisions that amend one or various former treaties, such asthe Protocol of 1946 amending the Agreements, Conventions andProtocols on Narcotic Drugs.

(e) A Protocol as a supplementary treaty is an instrument whichcontains supplementary provisions to a previous treaty, e.g.the 1967 Protocol relating to the Status of Refugees to the1951 Convention relating to the Status of Refugees.

(f) A Proces-Verbal is an instrument that contains a record ofcertain understandings arrived at by the contracting parties.

Signatories and PartiesThe term “Parties", which appears in the header of each treaty,

in the publication Multilateral Treaties Deposited with theSecretary-General, includes both "Contracting States" and"Parties". For general reference, the term "ContractingStates" refers to States and other entities with treaty-makingcapacity which have expressed their consent to be bound by atreaty where the treaty has not yet entered into force orwhere it has not entered into force for such States andentities; the term "Parties" refers to States and other


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Labour Law Handbook (By Ojijo)entities with treaty-making capacity which have expressedtheir consent to be bound by a treaty and where the treaty isin force for such States and entities.)

TreatiesThe term "treaty" can be used as a common generic term or as a

particular term which indicates an instrument with certaincharacteristics.

(a) Treaty as a generic term: The term "treaty" has regularlybeen used as a generic term embracing all instruments bindingat international law concluded between international entities,regardless of their formal designation. Both the 1969 ViennaConvention and the 1986 Vienna Convention confirm this genericuse of the term "treaty". The 1969 Vienna Convention defines atreaty as "an international agreement concluded between Statesin written form and governed by international law, whetherembodied in a single instrument or in two or more relatedinstruments and whatever its particular designation". The 1986Vienna Convention extends the definition of treaties toinclude international agreements involving internationalorganizations as parties. In order to speak of a "treaty" inthe generic sense, an instrument has to meet various criteria.First of all, it has to be a binding instrument, which meansthat the contracting parties intended to create legal rightsand duties. Secondly, the instrument must be concluded bystates or international organizations with treaty-makingpower. Thirdly, it has to be governed by international law.Finally the engagement has to be in writing. Even before the1969 Vienna Convention on the Law of Treaties, the word"treaty" in its generic sense had been generally reserved forengagements concluded in written form.

delegated legislation, secondary legislation or subordinatelegislation or subsidiary legislation

Delegated legislation (also referred to as secondary legislationor subordinate legislation or subsidiary legislation) is lawmade by an executive authority under powers given to them byprimary legislation in order to implement and administer therequirements of that primary legislation. It is law made by a


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Labour Law Handbook (By Ojijo)person or body other than the legislature but with thelegislature's authority.

Often, a legislature passes statutes that set out broad outlinesand principles, and delegates authority to an executive branchofficial to issue delegated legislation that flesh out thedetails (substantive regulations) and provide procedures forimplementing the substantive provisions of the statute andsubstantive regulations (procedural regulations). Delegatedlegislation can also be changed faster than primarylegislation so legislatures can delegate issues that may needto be fine-tuned through experience.

by-laws, code, bylaw, by law, byelaw , ordinance A by-law (sometimes also spelled bylaw, by law or byelaw) is a

rule or law established by an organization or community toregulate itself, as allowed or provided for by some higherauthority. The higher authority, generally a legislature orsome other governmental body, establishes the degree ofcontrol that the by-laws may exercise. By-laws may beestablished by entities such as a business corporation, aneighborhood association, or depending on the jurisdiction, amunicipality. Usually, the central government (and usually thestate governments) has no direct ability to regulate the scopeof the laws passed by the municipalities. As such terms suchas code, ordinance, or regulation, if not simply law are morecommon.

ordinance, By-law, Local ordinance, Act of ParliamentAn ordinance is an authoritative rule or law; a decree or

command. a public injunction or regulation: a city ordinanceagainst excessive horn blowing. something believed to havebeen ordained, as by a deity or destiny.

The ordiance can also be:¯ By-law, a rule established by an organization to regulate itself¯ Local ordinance, a law made by a municipality or other local authority¯ Act of Parliament, in some jurisdictions, such as England when the parliament

operated without regal sanction, and a number of British colonies.


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Labour Law Handbook (By Ojijo)regulation, self-regulation, co-regulation, legal restrictions A regulation is a legal norm intended to shape conduct that is a

byproduct of imperfection.5 A regulation may be used toprescribe or proscribe conduct ("command-and-control"regulation), to calibrate incentives ("incentive" regulation),or to change preferences ("preferences shaping" regulation").6

In statist mechanisms it can also be extended to monitoringand enforcement of rules as established by primary and/ordelegated legislation. In this form, it is generally a writteninstrument containing rules having the force of statist law.(as opposed to natural law). Other forms of regulation areself regulation. In general, regulations are written byexecutive agencies as a way to enforce laws passed by thelegislature. Because of the actual or potential interferencein choices, the idea of regulation and most issues related toregulation tend to be in controversy.7

Regulation creates, limits, constrains a right, creates or limitsa duty, or allocates a responsibility. Regulation can takemany forms: legal restrictions promulgated by a governmentauthority, contractual obligations that bind many parties (forexample, "insurance regulations" that arise out of contractsbetween insurers and their insureds), self-regulation by anindustry such as through a trade association, socialregulation (e.g. norms), co-regulation, third-partyregulation, certification, accreditation or market regulation.In its legal sense regulation can and should be distinguishedfrom primary legislation (by Parliament of elected legislativebody) on the one hand and judge-made law on the other.8

ministerial directives, ministerial orders, ministerial memorandaThe responsible Minister may issue directions from time to time

to clarify the management, reporting and otherresponsibilities of institute boards, and to give direction onthe employment of staff, charging fees, or other specificmatters. Some Directions are also given to ministries,

5 Orbach, Barak, What Is Regulation? 30 Yale Journal on Regulation Online1 (2012)

6 id. 7 Orbach (2012)8 Levi-Faur, David, Regulation and Regulatory Governance, Jerusalem

Papers in Regulation and Governance, No.1, 2010


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Labour Law Handbook (By Ojijo)departments, and agencies. The purposes of the Directions areto remake directions relating to employment of staff and torepeal earlier directions that are no longer required with themaking of the strategic planning guidelines and commercialguidelines.

Executive Memoranda Copies of detailed information sent to CEOs of ministries,

departments, and agencies accompanying Ministerial Directions.Presidential directives Presidential directives are considered a form of executive order

issued by the President with the advice and consent of aministry, agency or department within the Executive branch ofgovernment.

presidential executive ordersThe Constitution refers to the title of President as the

executive. Presidents issue executive orders to help officersand agencies of the executive branch manage the operationswithin the government. Executive orders have the full force oflaw when they take authority from a legislative power whichgrants its power directly to the Executive by theConstitution, or are made pursuant to certain Acts ofCongress/Parliament that explicitly delegate to the Presidentsome degree of discretionary power (delegated legislation).Like both legislative statutes and regulations promulgated bygovernment agencies, executive orders are subject to judicialreview, and may be struck down if deemed by the courts to beunsupported by statute or the Constitution. Major policyinitiatives require approval by the legislative branch, butexecutive orders have significant influence over the internalaffairs of government, deciding how and to what degreelegislation will be enforced, dealing with emergencies, waging72-hour length strikes on enemies, and in general fine-tuningpolicy choices in the implementation of broad statutes.Mostexecutive orders use these Constitutional reasonings as theauthorization allowing for their issuance to be justified aspart of the President's sworn duties, the intent being to helpdirect officers of the Executive carry out their delegatedduties as well as the normal operations of the federal


22

Labour Law Handbook (By Ojijo)government: the consequence of failing to comply possiblybeing the removal from office.

decreesA decree is a rule of law usually issued by a head of state (such

as the president of a republic or a monarch), according tocertain procedures (usually established in a constitution). Ithas the force of law. The particular term used for thisconcept may vary from country to country. The executive ordersmade by the President of the United States, for example, aredecrees (although a decree is not exactly an order). In non-legal English usage, however, the term refers to anyauthoritarian decision. The Holy See uses decrees from thepope such as papal bull, papal brief or motu proprio aslegislative acts.

edict An edict is an announcement of a law, often associated with

monarchism. The Pope and various micronational leaders arecurrently the only persons who still issue edicts.

proclamation A proclamation (Lat. proclamare, to make public by announcement)

is an official declaration. Royal proclamation granting LordMayoralty to Oxford. In English law, a proclamation is aformal announcement ("royal proclamation"), made under thegreat seal, of some matter which the King in Council or Queenin Council desires to make known to his or her subjects: e.g.,the declaration of war, or state of emergency, the statementof neutrality, the summoning or dissolution of Parliament, orthe bringing into operation of the provisions of some statutethe enforcement of which the legislature has left to thediscretion of the king in the announcement.


23


INSTITUTIONS IN EMPLOYMENT LAW (LEGAL SYSTEMS)

labour courtsThe Labour Court is a court that handles labour law cases, that

is, disputes arising from the relationship between employer,employee and trade union. The court is established by statute,and has a status similar to that of a division of the HighCourt. Judges of the Labour Court must be High Court judges orlawyers with experience in labour law.

The Labour Court has exclusive jurisdiction over cases arisingfrom the Labour Relations Act, which deals with collectivebargaining, trade unions, strikes and lockouts, unfairdismissal and unfair labour practices; working hours, leaveand remuneration; discrimination and affirmative action; andthe Unemployment Insurance. These matters are removed from thejurisdiction of the ordinary High Courts.

Labour Appeal Court The Labour Appeal Court is a court that hears appeals from the

Labour Court. The court has a status similar to that of theSupreme Court of Appeal. Judges of the Labour Court must beHigh Court judges.

Ordinarily the judgments of the Labour Appeal Court are final andthere is no further appeal, but when a constitutional issue isinvolved an appeal may be made to the Supreme Court of Appealand ultimately the Constitutional Court. As there is aconstitutional right to fair labour practices, such appealsare not uncommon.

Employment tribunals, labour tribunalsEmployment tribunals are tribunal public bodies which have

statutory jurisdiction to hear many kinds of disputes betweenemployers and employees. The most common disputes areconcerned with unfair dismissal, redundancy payments andemployment discrimination. The Labour Tribunal offers a quick,informal and inexpensive way of settling monetary disputesbetween employees and employers. There is no upper limit onthe amount of claim.

The most popular items of claim lodged by employees include: Lawpronto Training Manuals

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Labour Law Handbook (By Ojijo)¯ wages due for work done¯ wages in lieu of notice of termination of a contract of employment by an employer

without giving the required notice¯ pay for statutory holidays, annual leave, or rest days¯ severance pay, long service payment or terminal payments¯ end of year payment, double pay or annual bonus¯ commission¯ unpaid wages of up to 2 months against the principal contractor and superior sub-

contractors in the building and construction industry

Common items of claim lodged by employers include:

¯ wages in lieu of notice on resignation or termination of contract of employment

Ministry of LabourThe Ministry of Labour, Youth and Employment Development (MoLEYD)

has overall responsibility for labour inspection. Its main functions include:¯ overall coordination of labour inspections carried out by the area offices;¯ preparing, reviewing and recommending guidelines on the labour inspection

services and compliance with labour legislation in general;¯ providing legal guidance upon request (in this capacity, the inspectorate may

consult other governmental legal units including the Attorney General’s office);¯ ensuring dissemination of information to employers and employees on their rights

and obligations; and¯ where such need arises, assisting the area offices in conducting labour inspections.

labour laws, labour statutesThe comprehensive labour law and regulatory reform includes a

number of laws, including the following:¯ The Occupational Health and Safety Act¯ The Employment and Labour Relations Act¯ The Labour Institutions Act,¯ Workmen’s Compensation Act¯ Social Security (Regulatory Authority) Act

labour regualtions . labour rules


25

Labour Law Handbook (By Ojijo)These laws have been supplemented by a number of regulations,

including the following:¯ The Employment and Labour Relations (Code of good practice) Rules¯ The Labour Institutions (Mediation and Arbitration), Rules ¯ The Employment and Labour Relations (Forms) Rules¯ The Labour Institutions (Code of Conduct for Mediators and Arbitrators) Rules¯ The Industrial Court Rules ¯ The Labour Institutions (Mediation and Arbitration Guidelines)

labour inspection officers, OHSA officers, labour inspectionThe labour inspection staff are in charge of coordinating the

labour inspection system for all area offices. They areresponsible in particular for planning, reporting, generalguidance and the preparation of inspection forms.

On the occupational health and safety side, the services of OSHAinclude:

¯ work inspections;¯ industrial hygiene surveys;¯ medical health examinations;¯ registration of new workplaces;¯ training and awareness raising programmes;¯ investigation of accidents; and¯ gathering data and monitoring workplaces.

International Labour Organization (ILO) The International Labour Organization (ILO) is a United Nations

agency dealing with labour issues, particularly internationallabour standards and decent work for all. 185 of the 193 UNmember states are members of the ILO.

In 1969, the organization received the Nobel Peace Prize forimproving peace among classes, pursuing justice for workers,and providing technical assistance to other developingnations.

The ILO registers complaints against entities that are violatinginternational rules; however, it does not impose sanctions ongovernments.

Labour OfficerAny individual appointed or deemed to have been appointed by the

designate minister to carry out labour matters affecting


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Labour Law Handbook (By Ojijo)workers in various workplaces. These also include the deputylabour commissioner, an assistant labour commissioner and alabour inspector.


27


LEGAL DOCUMENTS & AGREEMENTS IN LABOUR LAW

International labour law, labour standards International labour law (also called "labour standards") is the

body of rules spanning public and private international lawwhich concern the rights and duties of employees, employers,trade unions and governments in regulating the workplace. TheInternational Labour Organization and the World TradeOrganization have been the main international bodies involvedin reform labour markets. The International Monetary Fund andthe World Bank have indirectly driven changes in labour policyby demanding structural adjustment conditions for receivingloans or grants. Conflict of laws issues arise, determined bynational courts, when people work in more than one country,and supra-national bodies, particularly in the law of theEuropean Union, has a growing body of rules regarding labourrights.

Declaration on Fundamental Principles and Rights at Work In 1998, the 86th International Labour Conference adopted the

Declaration on Fundamental Principles and Rights at Work. Thisdeclaration contains four fundamental policies:

1. The right of workers to associate freely and bargain collectively;2. The end of forced and compulsory labour;3. The end of child labour; and4. The end of unfair discrimination among workers.

Child labourThe term child labour is often defined as work that deprives

children of their childhood, potential, dignity, and isharmful to their physical and mental development.

Child labour refers to work that:¯ is mentally, physically, socially or morally dangerous and harmful to children; and¯ interferes with their schooling by:¯ depriving them of the opportunity to attend school;¯ obliging them to leave school prematurely; or¯ requiring them to attempt to combine school attendance with excessively long and

heavy work.

In its most extreme forms, child labour involves children beingenslaved, separated from their families, exposed to serious Lawpronto Training Manuals

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Labour Law Handbook (By Ojijo)hazards and illnesses and/or left to fend for themselves onthe streets of large cities – often at a very early age.Whether or not particular forms of "work" can be called childlabour depends on the child's age, the type and hours of workperformed, the conditions under which it is performed and theobjectives pursued by individual countries. The answer variesfrom country to country, as well as among sectors withincountries.

Not all work done by children falls under the classification ofchild labour and therefore should not be so readily targetedfor elimination. Children's or adolescents' participation inwork that does not negatively affect their health and personaldevelopment or interfere with their schooling, is generallyregarded as being something positive. This includes activitiessuch as helping their parents around the home, assisting in afamily business or earning pocket money outside school hoursand during school holidays. These kinds of activitiescontribute to children's development and to the welfare oftheir families; they provide them with skills and experience,and help to prepare them to be productive members of societyduring their adult life.

International Labour Organization Conventions The list of International Labour Organization Conventions totals

190 laws which aim to improve the labour standards of peoplearound the world. There are eight fundamental Conventions (onprohibition of forced labour, child labour, the right toorganise in a trade union, and suffer no discrimination) whichare binding upon every member country of the InternationalLabour Organization from the fact of membership, since theDeclaration on Fundamental Principles and Rights at Work in1998. The other Conventions are binding upon member countrieswhose legislatures have chosen to ratify them. Once ratified,because there is no international labour court as such,Conventions rely for their enforcement upon the jurisprudenceof domestic courts.

Minimum wage lawTo protect the right of labours for fixing minimum wage, ILO has

created Minimum Wage-Fixing Machinery Convention, 1928,


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Labour Law Handbook (By Ojijo)Minimum Wage Fixing Machinery (Agriculture) Convention, 1951and Minimum Wage Fixing Convention, 1970 as minimum wage law.

International labor standards International labor standards refer to conventions agreed upon by

international actors, resulting from a series of valuejudgments, set forth to protect basic worker rights, enhanceworkers’ job security, and improve their terms of employmenton a global scale. The intent of such standards, then, is toestablish a worldwide minimum level of protection frominhumane labor practices through the adoption andimplementation of said measures. From a theoreticalstandpoint, it has been maintained, on ethical grounds, thatthere are certain basic human rights that are universal tohumankind. Thus, it is the aim of international laborstandards to ensure the provision of such rights in theworkplace, such as against workplace aggression, bullying,discrimination and gender inequality on the other hands forworking diversity, workplace democracy and empowerment.

While the existence of international labor standards does notnecessarily imply implementation or enforcement mechanisms,most real world cases have utilized formal treaties andagreements stemming from international institutions. Theprimary international agency charged with developing workingstandards is the International Labour Organization (ILO).Established in 1919, the ILO advocates international standardsas essential for the eradication of labor conditions involving"injustice, hardship and privation". According to the ILO,international labor standards contribute to the possibility oflasting peace, help to mitigate potentially adverse effects ofinternational market competition and help the progress ofinternational development.

Implementation, however, is not limited to the ILO nor is itconstrained to the legislative model that the ILO represents.Other alternatives include direct trade sanctions,multilateral enforcement, and voluntary standards. In additionto controversies that arise over each of these models, greaterissues have also been raised concerning the debate over theneed for international labor standards themselves. However,while critics have arisen, the international community has


30

Labour Law Handbook (By Ojijo)largely come to a consensus in favor of basic protection ofthe world’s labor force from inhumane practices.

Associated with the development of successful international laborstandards is proper monitoring and enforcement of laborstandards. Most monitoring occurs through the ILO, butdomestic agencies and other NGOs also play a role in thesuccessful monitoring of international labor standards.

Forced Labour Convention, 1930Obligation for members to "completely suppress such forced or

compulsory labour", with exceptions for military, civilservice, court orders, for emergencies and minor communalorders.

Freedom of Association and Protection of the Right to OrganiseConvention, 1948

Protection against discrimination for joining a trade union andtaking collective action.

Right to Organise and Collective Bargaining Convention, 1949The right to collective bargaining with an employer through a

trade union.Equal Remuneration Convention, 1951The right to equal pay, without any discrimination on grounds of

gender.Abolition of Forced Labour Convention, 1957Positive obligation on member states to ensure that all forced

labour is abolished.Discrimination (Employment and Occupation) Convention, 1958The right to not be discriminated against on grounds of "race,

colour, sex, religion, political opinion, national extractionor social origin", or other grounds determined by memberstates, in employment.

Minimum Age Convention, 1973The requirement that people are at least 15, or a higher age

determined by member states, or 14 for member states whoseeducation systems are developing, before working, and 18 yearsold before dangerous work.


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Labour Law Handbook (By Ojijo)Worst Forms of Child Labour Convention, 1999Duties upon member states to identify and take steps to prohibit

the worst forms of child labour (slavery, prostitution, drugtrafficking and other dangerous jobs).

Weekly Rest (Industry) Convention, 1921Medical Examination of Young Persons (Industry) Convention, 1946Medical Examination of Young Persons (Non-Industrial Occupations)

Convention, 1946Labour Inspection Convention, 1947Also, Protocol of 1995 to the Labour Inspection Convention, 1947

P081.Labour Clauses (Public Contracts) Convention, 1949Protection of Wages Convention, 1949Migration for Employment Convention (Revised), 1949Social Security (Minimum Standards) Convention, 1952Weekly Rest (Commerce and Offices) Convention, 1957Plantations Convention, 1958Also, Protocol of 1982 to the Plantations Convention, 1958, P110.Radiation Protection Convention, 1960Equality of Treatment (Social Security) Convention, 1962Hygiene (Commerce and Offices) Convention, 1964Employment Injury Benefits Convention, 1964Employment Policy Convention, 1964Requirement to develop "co-ordinated economic and social policy""

for the aim of full employment.Medical Examination of Young Persons (Underground Work)

Convention, 1965Invalidity, Old-Age and Survivors' Benefits Convention, 1967Labour Inspection (Agriculture) Convention, 1969Medical Care and Sickness Benefits Convention, 1969Minimum Wage Fixing Convention, 1970Workers' Representatives Convention, 1971


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Labour Law Handbook (By Ojijo)Occupational Cancer Convention, 1974Paid Educational Leave Convention, 1974Rural Workers' Organisations Convention, 1975Human Resources Development Convention, 1975Migrant Workers (Supplementary Provisions) Convention, 1975Tripartite Consultation (International Labour Standards)

Convention, 1976Continuity of Employment (Seafarers) Convention, 1976Seafarers' Annual Leave with Pay Convention, 1976Merchant Shipping (Minimum Standards) Convention, 1976Also, Protocol of 1996 to the Merchant Shipping (Minimum

Standards) Convention, 1976, P147.Working Environment (Air Pollution, Noise and Vibration)

Convention, 1977Nursing Personnel Convention, 1977Labour Administration Convention, 1978Labour Relations (Public Service) Convention, 1978Occupational Safety and Health (Dock Work) Convention, 1979Collective Bargaining Convention, 1981Occupational Safety and Health Convention, 1981Also, Protocol of 2002 to the Occupational Safety and Health

Convention, 1981, P155.Workers with Family Responsibilities Convention, 1981Maintenance of Social Security Rights Convention, 1982Termination of Employment Convention, 1982Requirement for employers to give a good reason before dismissing

a worker. No conclusions on revision.Vocational Rehabilitation and Employment (Disabled Persons)

Convention, 1983Labour Statistics Convention, 1985Occupational Health Services Convention, 1985Asbestos Convention, 1986


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Labour Law Handbook (By Ojijo)Seafarers' Welfare Convention, 1987Health Protection and Medical Care (Seafarers) Convention, 1987Social Security (Seafarers) Convention (Revised), 1987Repatriation of Seafarers Convention (Revised), 1987Safety and Health in Construction Convention, 1988Employment Promotion and Protection against Unemployment

Convention, 1988Indigenous and Tribal Peoples Convention, 1989The right of indigenous and tribal communities to participate in

decision making procedures.Chemicals Convention, 1990Night Work Convention, 1990Working Conditions (Hotels and Restaurants) Convention, 1991Protection of Workers' Claims (Employer's Insolvency) Convention,

1992Prevention of Major Industrial Accidents Convention, 1993Part-Time Work Convention, 1994Safety and Health in Mines Convention, 1995Home Work Convention, 1996Labour Inspection (Seafarers) Convention, 1996Recruitment and Placement of Seafarers Convention, 1996Seafarers' Hours of Work and the Manning of Ships Convention,

1996Private Employment Agencies Convention, 1997Maternity Protection Convention, 2000Safety and Health in Agriculture Convention, 2001Seafarers' Identity Documents Convention (Revised), 2003Maritime Labour Convention, 2006Promotional Framework for Occupational Safety and Health

Convention, 2006Work in Fishing Convention, 2007


34

Labour Law Handbook (By Ojijo)Domestic Workers Convention, 2011Hours of Work (Industry) Convention, 1919Unemployment Convention, 1919Positive obligation on member states to establish and maintain

public employment agencies.Right of Association (Agriculture) Convention, 1921Workmen's Compensation (Agriculture) Convention, 1921Equality of Treatment (Accident Compensation) Convention, 1925Minimum Wage-Fixing Machinery Convention, 1928Hours of Work (Commerce and Offices) Convention, 1930Underground Work (Women) Convention, 1935Forty-Hour Week Convention, 1935Officers' Competency Certificates Convention, 1936Minimum Age (Sea) Convention (Revised), 1936Right of Association (Non-Metropolitan Territories) Convention,

1947Labour Inspectorates (Non-Metropolitan Territories) Convention,

1947Employment Service Convention, 1948Night Work (Women) Convention (Revised), 1948Accommodation of Crews Convention (Revised), 1949Fee-Charging Employment Agencies Convention (Revised), 1949Minimum Wage Fixing Machinery (Agriculture) Convention, 1951Social Policy (Basic Aims and Standards) Convention, 1962Holidays with Pay Convention (Revised), 1970Accommodation of Crews (Supplementary Provisions) Convention,

1970Dock Work Convention, 1973Voluntary labour standards The voluntary standards model makes reference to a system of

implementation for labor standards based on a corporate codeof conduct. Corporate codes of conduct are adopted when


35

Labour Law Handbook (By Ojijo)various organizations join together in agreement to operateunder a set of socially responsible labor rules. Therefore,this model generally involves voluntary behavior and self-regulation.


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Labour Law Handbook (By Ojijo)Dispute Resolution DISPUTES & DISPUTE RESOLUTION

DisputeA conflict or controversy; a conflict of claims or rights; an

assertion of a right, claim, or demand on one side, met bycontrary claims or allegations on the other. The subject oflitigation; the matter for which a suit is brought and uponwhich issue is joined, and in relation to which jurors arecalled and witnesses examined. A labor dispute is anydisagreement between an employer and his or her employeesconcerning anything job-related, such as tenure, hours,wages, fringe benefits, and employment conditions.

legal disputeDisagreement over the existence of a legal duty or right, or

over the extent and kind of compensation that may be claimedby the injured party for a breach of such duty or right.

legal case A legal case is a dispute between opposing parties resolved by

a court, or by some equivalent legal process. A legal casemay be either civil or criminal. There is a defendant and anaccuser. Legal cases, whether criminal or civil, arepremised on the idea that a dispute will be fairly resolvedwhen a legal procedure exists by which the dispute can bebrought to a factfinder not otherwise involved in the case,who can evaluate evidence to determine the truth withrespect to claims of guilt, innocence, liability, or lack offault. Details of the procedure may depend on both the kindof case and the kind of system in which the case is brought- whether, for example, it is an inquisitorial system or anadversarial system.

civil caseA civil case, more commonly known as a lawsuit or controversy,

begins when a plaintiff files a document called a complaintwith a court, informing the court of the wrong that theplaintiff has allegedly suffered because of the defendant,and requesting a remedy. A civil case can also be arbitratedthrough arbitration. The remedy sought may be money, an


37

Labour Law Handbook (By Ojijo)injunction, which requires the defendant to perform orrefrain from performing some action, or a declaratoryjudgment, which determines that the plaintiff has certainlegal rights. Whoever wins gets either released from custodyor gets nothing (Accuser).

The plaintiff must also make a genuine effort to inform thedefendant of the case through service of process, by whichthe plaintiff delivers to the defendant the same documentsthat the plaintiff filed with the court.

At any point during the case, the parties can agree to asettlement, which will end the case, although in somecircumstances, such as in class actions, a settlementrequires court approval in order to be binding.

criminal caseA criminal case, in common law jurisdictions, begins when a

person suspected of a crime is indicted by a grand jury orotherwise charged with the offense by a government officialcalled a prosecutor or district attorney.

Like a civil case, a criminal case may also be settled beforea trial through a plea bargain, in some jurisdictions. If aperson does not go to trial, he/she may endure even biggerpenalties.

Fact in Dispute A fact is said to be in dispute when it is alleged by one

party and denied by the other, and by both with some show ofreason. A mere naked allegation, without evidence, oragainst the evidence, cannot create a dispute within themeaning of the law. 9

Dispute resolutionDispute resolution is the process of resolving disputes

between parties.Methods of dispute resolution include: facilitation lawsuits (litigation) arbitration collaborative law mediation9 Knight's Appeal, 19 Pa. 493, 494 (Pa. 1852)


38

Labour Law Handbook (By Ojijo) conciliation many types of negotiation

One could theoretically include violence or even war as partof this spectrum, but dispute resolution practitioners donot usually do so; violence rarely ends disputeseffectively, and indeed, often only escalates them.

Not all disputes, even those in which skilled interventionoccurs, end in resolution. Such intractable disputes form aspecial area in dispute resolution studies.

Dispute Resolution is an important requirement inInternational Trade: Negotiation, Mediation, Arbitration andLegal Action.

dispute resolution methods, dispute resolution mechanisms,dispute resolution, Dispute mechanisms, grievance mechanisms

A dispute mechanism is a structured process that addressesdisputes or grievances that arise between two or moreparties engaged in business, legal, or societalrelationships. Dispute mechanisms are used in disputeresolution, and may incorporate conciliation, conflictresolution, mediation, and negotiation.

Otherwise known as grievance mechanisms, dispute mechanismsare typical non-judicial in nature, meaning that they arenot resolved within the court of law. According to researchproduced by the non-judicial grievance mechanism task forceof John Ruggie, Special Representative of Business and HumanRights to the United Nations, those who design and overseenon-judicial mechanisms should acknowledge core human rightsprocesses defined by "all core UN human rights treaties.”

Dispute mechanisms comprise a way for socially responsiblebusinesses to meet requirements of corporate responsibility-related agreements or pacts, reduce risk while capacity-building or developing internationally, and assist largerprocesses that create positive social change.

Dispute mechanisms are an increasingly effective tool forestablishing communication channels between businesses andcommunities. When successful, they offer a trusted way forlocal peoples or communities to voice and resolve concernsrelated to development projects, while providing companies


39

Labour Law Handbook (By Ojijo)with transparent, effective ways to address communityconcerns. Generally, it is agreed that a well-functioninggrievance mechanism should:

Provides a predictable, transparent, and credible process to all parties, resultingin outcomes that are seen as fair, effective, and lasting

Builds trust as an integral component of broader community relations activities Enables more systematic identification of emerging issues and trends, facilitating

corrective action and preemptive engagement.

Judicial dispute resolutionThe legal system provides resolutions for many different types

of disputes. However, some disputants will not reachagreement through a collaborative processes. Some disputesneed the coercive power of the state to enforce aresolution. Perhaps more importantly, many people want aprofessional advocate when they become involved in adispute, particularly if the dispute involves perceivedlegal rights, legal wrongdoing, or threat of legal actionagainst them.

The most common form of judicial dispute resolution islitigation. Litigation is initiated when one party filessuit against another. In the United States, litigation isfacilitated by the government within federal, state, andmunicipal courts. The proceedings are very formal and aregoverned by rules, such as rules of evidence and procedure,which are established by the legislature. Outcomes aredecided by an impartial judge and/or jury, based on thefactual questions of the case and the application law. Theverdict of the court is binding, not advisory; however, bothparties have the right to appeal the judgment to a highercourt. Judicial dispute resolution is typically adversarialin nature, for example, involving antagonistic parties oropposing interests seeking an outcome most favorable totheir position.

Retired judges or private lawyers often become arbitrators ormediators; however, trained and qualified non-legal disputeresolution specialists form a growing body within the fieldof ADR. In the United States of America, many states nowhave mediation or other ADR programs annexed to the courts,to facilitate settlement of lawsuits.


40

Labour Law Handbook (By Ojijo)Extrajudicial dispute resolutionSome use the term dispute resolution to refer only to

alternative dispute resolution (ADR), that is, extrajudicialprocesses such as arbitration, collaborative law, andmediation used to resolve conflict and potential conflictbetween and among individuals, business entities,governmental agencies, and (in the public international lawcontext) states. ADR generally depends on agreement by theparties to use ADR processes, either before or after adispute has arisen. ADR has experienced steadily increasingacceptance and utilization because of a perception ofgreater flexibility, costs below those of traditionallitigation, and speedy resolution of disputes, among otherperceived advantages. However, some have criticized thesemethods as taking away the right to seek redress ofgrievances in the courts, suggesting that extrajudicialdispute resolution may not offer the fairest way for partiesnot in an equal bargaining relationship, for example in adispute between a consumer and a large corporation. Inaddition, in some circumstances, arbitration and other ADRprocesses may become as expensive as litigation or more so.

Alternative dispute resolution (ADR) Alternative dispute resolution (ADR) refers to a variety of

processes that help parties resolve disputes without atrial. Typical ADR processes include mediation, arbitration,neutral evaluation, and collaborative law.

Online dispute resolutionDispute resolution can also take place on-line or by using

technology in certain cases. Online dispute resolution, agrowing field of dispute resolution, uses new technologiesto solve disputes. Online Dispute Resolution is also called"ODR". Online Dispute Resolution or ODR also involves theapplication of traditional dispute resolution methods todisputes which arise online.


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Labour Law Handbook (By Ojijo)TYPES OF DISPUTES

Two types of disputesThey can be either civil or criminal. civil dispute A civil dispute is between you and another person. Example: A

calls B a filthy liar and a cheat in front of all of hisfriends and co-workers causing B great embarrassment. B canthen sue for slander. The suit would be a civil suit. Civildisputes can be between individuals, or an individual and atrader, business or company, or between companies.

criminal dispute A criminal dispute, on the other hand, is between you and the

State. Example: A is caught shoplifting at Cocacola.Cocacola won't sue, they'll notify the cops and the copswill charge A with larceny. This would be a criminaldispute. As with civil disputes, criminal disputes can bebetween individuals, or an individual and a trader, businessor company, or between companies

There are essentially other classifications of disputes asbelow:

State vs. State DisputesThese are primarily boundary disputes concerning natural

resource fields that cross international borders, most ofwhich are located in maritime waters. Strictly speaking,they only involve governments since only they are able toclaim sovereign title and resolve boundaries with theirneighboring states. However, natural resource companies getindirectly involved in these disputes when they are grantedconcessions that straddle disputed boundary lines.

Companies are sometimes asked by developing nations to fundthe dispute costs, and provide data and legal expertise toaid in resolving the boundary dispute. Companies thereforeneed to be familiar with these disputes and be able tomanage them properly when they find themselves in the middleof one.

Company vs. State Disputes


42

Labour Law Handbook (By Ojijo)These are often called investor-state or state investment

disputes. They occur when governments significantly changethe terms of the original deal or expropriate an investment.The investor (in this case a natural resource company or aconsortium of natural resource companies) can base its claimon its investment contract (e.g. a production sharingcontract or risk service agreement) or an investment treaty,or possibly both. Most treaty claims are made underbilateral investment treaties (BITs), which are negotiatedand ratified by two sovereign states.

There are presently more than 2,500 BITs involving some 180countries in existence around the world. There is onemultilateral investment treaty of significance to thenatural resource industry and that is the Energy CharterTreaty.10

Companies should structure their investments and negotiatetheir host government contracts to take advantage of theinvestment protection provided by these treaties and toaccess the facilities of the International Centre for theSettlement of Investment Disputes (ICSID) as the forum ofchoice for any dispute with a sovereign state. That isessentially accomplished by incorporating their investingcompany and managing their business out of a jurisdictionthat has a strong BIT with the host country and by includingan ICSID dispute resolution clause in their host governmentcontract. These disputes do not often happen tointernational oil companies (IOCs). But when they do occur,they involve large sums of money and therefore have asignificant impact on a company’s bottom line. Companiesshould therefore seek qualified legal advice on how best tostructure their investments and draft the dispute resolutionclauses in their host government contracts.

Company vs. Company DisputesThese are usually called international commercial disputes.

There are two subcategories of disputes occurring betweencompanies. The first subcategory is amongst joint ventureparticipants in contracts such as: Joint Operating Agreements

10 See http://www.encharter.org for more details.


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Labour Law Handbook (By Ojijo) Unitization Agreements Farmout Agreements Area of Mutual Interest Agreements Sale and Purchase Agreements Confidentiality Agreements

The second subcategory of disputes is between operators andservice contractors for the following kinds of agreements: Service Agreements Construction Contracts Equipment and Facilities Contracts Transportation and Processing Contracts

These disputes make up the majority of disputes in whichnatural resource companies find themselves.

They run the full gamut of size, complexity and financialsignificance.

Individual vs. Company DisputesThere are a number of situations where individuals initiate

claims against natural resource companies. The first is whenan individual suffers a personal injury and begins a tortclaim against a company. Foreign claims are usually startedin local courts but can sometimes be filed in otherjurisdictions.11

The second group of claims by individuals arise when promotersof companies allege they have an interest in contract andthe accompanying joint operating agreement, sometimes in thecontext of a claim of tortious interference by a thirdparty.

The final group of claims concerns agents or consultants whodemand payment under their agent agreements for winning agovernment contract for a company. There are a series ofarbitrations that have happened over the last 50 years wherecompanies have refused to pay their agent based uponcorruption allegations after securing the host governmentcontract.12

personal disputes11 See Jonathan Drimmer, Human Rights and the Extractive Industries:

Litigation and Compliance Trends, Journal of World Energy Law & Business(Vol 3, No 2—July 2010) for more details on these claims worldwide.


44

Labour Law Handbook (By Ojijo)Personal disputes are disagreements as to rights and

responsibilities, between individuals. They can be eithercivil or criminal.

12 See A. Timothy Martin, “International Arbitration and Corruption: An Evolving Standard”, 20th Annual Institute for Transnational Arbitration,June, 2009. Available at: http:// www.timmartin.ca/qualifications/publications.


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LABOUR DISPUTE RESOLUTION

labor trialLabor law (also known as employment law) is the body of laws,

administrative rulings, and precedents which address the legalrights of, and restrictions on, working people and theirorganizations. As such, it mediates many aspects of therelationship between trade unions, employers and employees.There are two broad categories of labour law.

1. First, collective labour law relates to the tripartite relationship between employee,employer and union.

2. Second, individual labour law concerns employees' rights at work and through thecontract for work.

co-determinationThat the workers as well as the management and owners should

determine the future of their companies. Unfortunately,workers’ representatives often lack the competence to considerstrategic issues or are not independent from the company. Insome instances, worker members of a supervisory board opposingplanned initiatives by the company have been accused ofleaking confidential information to the press. Concerns aboutinformation leaks can damage communications betweensupervisory and management boards.

duty of fair representation The duty of fair representation is incumbent upon labor unions

that are the exclusive bargaining representative of workers ina particular group. It is the obligation to represent allemployees fairly, in good faith, and without discrimination.Originally recognized by the United States Supreme Court in aseries of cases in the mid-1940s involving racialdiscrimination by railway workers' unions covered by theRailway Labor Act, the duty of fair representation alsoapplies to workers covered by the National Labor Relations Actand, depending on the terms of the statute, to public sectorworkers covered by state and local laws regulating laborrelations.

job description


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Labour Law Handbook (By Ojijo)A job description is a list that a person might use for general

tasks, or functions, and responsibilities of a position. Itmay often include to whom the position reports, specificationssuch as the qualifications or skills needed by the person inthe job, or a salary range. Job descriptions are usuallynarrative,13 but some may instead comprise a simple list ofcompetencies; for instance, strategic human resource planningmethodologies may be used to develop a competency architecturefor an organization, from which job descriptions are built asa shortlist of competencies.

redundancyRedundancy is a situation where…[a] worker’s employment is terminated by the

employer, the termination being attributable, wholly or mainly, to the fact that theposition filled by that worker is, or will become, superfluous to the needs of theemployer. The common law accepts the right of the employer todetermine the structure of the business and, therefore, tomake positions redundant subject to any redundancies beinggenuine and carried out in a fair ‘good faith‘ and reasonablemanner (G N Hale and Son Ltd v Wellington Caretakers, at al. IUOW)14. Actingin good faith means, amongst other things, where the employeris proposing to make a decision that could mean an employee’semployment is terminated, giving relevant employees access toinformation about the decision and an opportunity to commenton that information before a decision is made.

The following situations may justify termination on the groundsof redundancy (subject to any termination having been carried out in aprocedurally fair manner):

1. reducing employee numbers for efficiency or cost cutting reasons, including on orfollowing the appointment of a receiver to a business, or because the work can bedone by other means, e.g. contracting out

2. materially changing the job description applying to a position (changing duties andresponsibilities), and

3. relocating a business or position in a business more than a reasonable distancefrom its original place.

4. the introduction of new technology5. rationalisations of staff to increase business efficiency

13 Torrington & Hall. Personnel Management: A New Approach. Prentice Hall International. p. 205. ISBN 0-13-658501-9.

14 [1991] 1 NZLR 151.


http://en.wikipedia.org/wiki/Special:BookSources/0-13-658501-9

http://en.wikipedia.org/wiki/International_Standard_Book_Number

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Labour Law Handbook (By Ojijo)6. restructuring business operations, including a change in the organisation's roles or

location7. closure of business8. outsourcing, and9. sale of the employer's business.

restructuringRestructuring is a process that often results in redundancy. technical redundancyA technical redundancy situation arises where an employee’s

employment with a particular employer is terminated as aresult of the sale or transfer of the business to anotherowner, but the employee is offered the same position with thenew owner on the same terms and conditions of employment,including recognition of service with the previous employer.In this situation there is a new legal employer and theemployee cannot be compelled to transfer it. In mostemployment agreements providing for redundancy compensation, atechnical redundancy situation is typically grounds to avoidpayment of redundancy compensation. In these circumstances, ifthe employee elects not to transfer their employment to thenew owner there is no entitlement to redundancy compensation.Where ownership of the legal entity is transferred, as with asale of shares rather than the business asset, there is notany form of redundancy.

substantially similar positionsMost redundancy agreements provide for transfer into a substantially

similar position as an exclusion to entitlement to redundancycompensation in circumstances in which redundancy compensationmight otherwise be payable.

In addition to having genuine reasons for any redundancy theemployer must demonstrate they have carried out anytermination on the grounds of redundancy to be procedurallyfair.

In circumstances in which termination for redundancy iscontemplated, it may be necessary for an employer to selectbetween a number of potential candidates for redundancy.Selection criteria and the application of them must beconsistent with the employer’s obligation to act justified.


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Labour Law Handbook (By Ojijo)genuine redundancyThere may still be a genuine redundancy if the employee’s tasks are

delegated to other existing employees following theredundancy. However, if the employee is effectively replacedwith someone else, then the redundancy is unlikely to begenuine. A genuine redundancy occurs when a position becomessuperfluous to an employer’s needs.

equal opportunityEqual opportunity is a stipulation that all people should be

treated similarly, unhampered by artificial barriers orprejudices or preferences, except when particular‘distinctions can be explicitly justified.’15 The idea is toremove arbitrariness from the selection process and base it onsome ‘pre-agreed basis of fairness, with the assessmentprocess being related to the type of position,’16 andemphasizing procedural and legal means.17 It is opposed tonepotism18 and plays a role in whether a social structure isseen as legitimate.19 People with differing politicalviewpoints see it differently.20

In the classical sense, the equality of opportunity is closelyaligned with the concept of equality before the law and ideasof meritocracy.21

15 Paul de Vries (2011-09-12). ‘equal opportunity’. Blackwell Reference. Retrieved 2011-09-12.; See also Laura, Laubeová (2000). ’Encyclopedia ofThe World’s Minorities’.Fitzroy Dearborn Publishers. Retrieved 2011-09-12. ‘This complex and contested concept...’

16 Nicole Richardt, Torrey Shanks (2008). ’Equal Opportunity’. International Encyclopedia of the Social Sciences. Retrieved 2011-09-12. ‘via Encyclopedia.com’

17 Yo Jackson (editor) (2006). ‘Encyclopedia of multicultural psychology’.Sage Publications. ISBN 1-4129-0948-1. Retrieved 2011-09-12.

18 Richard Arneson (Aug 29, 2008). ‘Equality of Opportunity’. Stanford Encyclopedia of Philosophy. Retrieved 2011-09-08. ‘(Fall 2008 Edition)’

19 Marjorie Conley (Sept. 9, 2003). ‘Sciences Po ― an elite institution′s introspection on its power, position and worth in French society’. portfolio. Retrieved 2011-09-12. ‘... created new entrance criteria for students coming from less economically favored social strata. ...’

20 Ricardo Paes de Barros. Francisco H. G. Ferreira, Jose R. Molinas Vega,and Jaime Saavedra Chanduvi (2009). ‘Measuring inequality of opportunityin Latin America and the Caribbean’. Palgrave Macmillan and the World Bank. ISBN 978-0-8213-7745-1. Retrieved 2011-09-08. ‘page xvii’


49

Labour Law Handbook (By Ojijo)The scope of equal opportunity has expanded to cover more than

issues regarding the rights of minority groups, but coverspractices regarding ‘recruitment, hiring, training, layoffs,discharge, recall, promotions, responsibility, wages, sickleave, vacation, overtime, insurance, retirement, pensions,and various other benefits.’22

The term is interrelated with and often contrasted with otherconceptions of equality such as equality of outcome andequality of autonomy.

The selection process should not be based on some arbitrary orirrelevant criterion such as religion or skin color, butrather should emphasize ‘individual abilities and ambition’23

or, as Martin Luther King, Jr. said in his famous I Have A Dreamspeech that he hoped his four children would be judged not bythe ‘color of their skin but by the content of their character.’24 Then, fromthis ‘starting gate’ position, regardless of the particularview of equality of opportunity, applicants are seen asessentially accountable for the results from that pointonwards––whether they succeed or fail is up to their ownability at this point.25 And one applicant gets the job. In ausual conception, equality of opportunity logically impliesdiffering results afterwards, so there is support for the viewthat equality of opportunity and equality of outcome arephilosophically incompatible.26

21 Young, Michael (1963) [1958]. The Rise of the Meritocracy. Great Britain: Penguin Books. p. 129. ISBN 1-56000-704-4. Retrieved 2011-01-12.

22 Boyd Childress (2011-09-12). ‘Equal Opportunity’. Encyclopedia of Business. Retrieved 2011-09-12.

23 Nicole Richardt, Torrey Shanks (2008). ‘Equal Opportunity’. International Encyclopedia of the Social Sciences. Retrieved 2011-09-12.‘via Encyclopedia.com’

24 Paul de Vries (2011-09-12). ‘equal opportunity’. Blackwell Reference. Retrieved 2011-09-12.

25 John E. Roemer (1998). ‘Equality of Opportunity (book title)’. Harvard College. ISBN 0-674-25991-2. Retrieved 2011-09-08. ‘(see pages 1, 2,’

26 Timothy Noah (Oct. 10, 2000). ’Dinesh D'Souza vs. ‘Equality of Opportunity’’.Slate Magazine. Retrieved 2011-09-08. ‘(review of D'Souza's book The Virtue of Prosperity)’


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Labour Law Handbook (By Ojijo) formal equality of opportunityFormal equality of opportunity, sometimes referred to as the

nondiscrimination principle27 or described as the absence of directdiscrimination,28 or described in the narrow sense as equality ofaccess,29 is characterized by:

1) Open call. Positions bringing superior advantages should be open to all applicants;job openings should be publicized in advance giving applicants a ‘reasonableopportunity’ to apply. Further, all applications should be accepted.

2) Fair judging. Applications should be judged on their merits with proceduresdesigned to identify those best–qualified. The evaluation of the applicant should bein accord with the duties of the position; for example, for the job opening of choirdirector, the evaluation may judge applicants based on musical knowledge ratherthan some arbitrary criterion such as hair color.

3) An application is chosen. The applicant judged as ‘most qualified’ is offered theposition while others are not. There is agreement that the result of the process isagain unequal, in the sense that one person has the position while another does not,but that this outcome is deemed fair on procedural grounds.

There should be an equal opportunity for all. Each and everyperson should have as great or as small an opportunity as thenext one. There should not be the unfair, unequal, superioropportunity of one individual over another.

employee choice doctrineThe forfeiture of a departing employee's right to judicial review

of a restrictive covenant if that employee agreed voluntarilyto receive post-employment benefits as consideration for thecovenant.

employerA person who is contractually bound to a worker - the employee -

to give that worker money as a salary or wages, in exchangefor ongoing work and for which the employer directs the workand exercises fundamental control over the work.

27 John E. Roemer (1998). ‘Equality of Opportunity (book title)’. Harvard College. ISBN 0-674-25991-2. Retrieved 2011-09-08. ‘(see pages 1, 2,’


29 Cashmore, Ellis, Dictionary of Race and Ethnic Relations, London: Routledge, 1996


http://plato.stanford.edu/entries/equal-opportunity/



http://books.google.com/books?id=2LfA_KjvOAsC&printsec=frontcover&dq=%22equality+of+opportunity%22&hl=en&ei=6JJpTqycJOrj0QHs5q2SBQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCoQ6AEwAA#v=onepage&q&f=false

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Labour Law Handbook (By Ojijo)employmentA contract in which one person, the employee, agrees to perform

work for another, the employer.employment at willAn employment contract during which the employer may terminate

the employment at any time subject only to the reason notbeing contrary to public policy.

employment standardsEntirely a creation of statute; minimum employee rights extended

for work within the jurisdiction served by the relevantstatute.

independent contractorA person hired by another not as an employee but, rather,

pursuant to a contract for service where the engaging partydoes not supervise or control the detail of the work, andwhere the party engaged remains self-employed.

substantive equality of opportunityThis term, sometimes called fair equality of opportunity, is a somewhat

broader and more expansive concept than the more limitingformal equality of opportunity and it deals with what issometimes described as indirect discrimination. It goes farther, andis more controversial than the formal variant, and has beenthought to be much harder to achieve, with greaterdisagreement about how to achieve greater equality,30 and hasbeen described as ‘unstable’,31 particularly if the society inquestion is unequal to begin with in terms of great disparityof wealth.32 It has been identified as more of a left–leaningpolitical position33 but this is not a hard–and–fast rule.

30 Nicole Richardt, Torrey Shanks (2008). ‘Equal Opportunity’. International Encyclopedia of the Social Sciences. Retrieved 2011-09-12. ‘via Encyclopedia.com’

31 Mark Bevir (editor) (2010). ‘Encyclopedia of Political Theory’. SAGE Publications. Retrieved 2011-09-12. ‘(see pages 452-453)...’

32 Daron Acemoglu (Jan. 23, 2011). ‘How does inequality matter? (letter tothe editor)’. The Economist. Retrieved 2011-09-08. ‘...equality of opportunity may be harder to achieve in an unequal society...’

33 ‘Socialism And Social Democracy’. Encyclopedia69.com. 2011. Retrieved 2011-09-12.


http://www.economist.com/economics/by-invitation/guest-contributions/economic_power_begets_political_power

http://www.economist.com/economics/by-invitation/guest-contributions/economic_power_begets_political_power

http://books.google.com/books?id=wVIoCtB3m74C&pg=PA452&lpg=PA452&dq=(%22equal+opportunity%22+OR+%22equality+of+opportunity%22)+encyclopedia&source=bl&ots=fnQS6-e-zj&sig=aqqDT8I6-QXS6PB_QRA7yikAAps&hl=en&ei=cyRuTqrdE6Px0gGVh_zpBA&sa=X&oi=book_result&ct=result&resnum=7&ved=0CEgQ6AEwBjgU#v=onepage&q&f=false

52

Labour Law Handbook (By Ojijo)Affirmative action programs usually fall under the substantive

category. The idea is to help disadvantaged groups get back toa normal starting position after a long period ofdiscrimination. The programs involve government action,sometimes with resources being transferred from an advantagedgroup to a disadvantaged one, and these programs have beenjustified on the grounds that imposing quotas counter-balancesthe past discrimination as well as being a ‘compelling stateinterest’ in diversity in society.34

equality of fair opportunityPhilosopher John Rawls offered this variant of substantive

equality of opportunity, and explained that it happens whenindividuals with the same ‘native talent and the same ambition’ have thesame prospects of success in competitions.35 Dworkin offers a similarview with the words ‘positions are to be open to all underconditions in which persons of similar abilities have equalaccess to office.’36

An example was given: If two persons X and Y have identicaltalent but X is from a poor family while Y is from a rich one,then equality of fair opportunity is in effect when both X and Y havethe same chance of winning the job.37 It suggests the idealsociety is ‘classless’ without a social hierarchy being passedfrom generation to generation, although parents can still passalong advantages to their children by genetics andsocialization skills.38 One view suggests that this approachmight advocate ‘invasive interference in family life.’39

34 Nicole Richardt, Torrey Shanks (2008). ‘Equal Opportunity’. International Encyclopedia of the Social Sciences. Retrieved 2011-09-12. ‘via Encyclopedia.com’

35 Rawls, John, 2001, Justice as Fairness: A Restatement, ed. by Erin Kelly, Cambridge, Harvard University Press.

36 Dworkin, Ronald, 2000, Sovereign Virtue, Cambridge: Harvard University Press, chapters 1-3; See also Gordon Marshall (1998). ‘Social justice’. Encyclopedia.com. Retrieved 2011-09-12. ‘... John Rawls's famous ‘difference principle’ ... (see his A Theory of Justice, 1972)’


38 Id 39 id


http://plato.stanford.edu/entries/equal-opportunity/

http://www.encyclopedia.com/doc/1O88-justicesocial.html

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Labour Law Handbook (By Ojijo)ELEMENTS OF EFFECTIVE DISPUTE RESOLUTION METHODS

Characteristics of effective dispute mechanismsThere are a number of dispute resolution methods that parties

can use in their disputes. They can use one or several ofthem together. Some are better than others depending on thecircumstances. Whatever parties choose, they need to drafttheir dispute resolution clause so that the differentmethods work properly together. Otherwise a party willreceive some unpleasant surprises at the time of thedispute. The various types of dispute resolution methodsinclude negotiation, mediation, expert determination,dispute review boards, litigation and arbitration.

Irrespective of the method, such mechanisms must at a minimumbe:

Legitimacy (dispute resolution)A dispute mechanism must have clear, transparent and

sufficiently independent governance structures to ensurethat no party to a particular grievance process caninterfere with the fair conduct of that process;

Accessibility (dispute resolution)A dispute mechanism must be publicized to those who may wish

to access it and provide adequate assistance for aggrievedparties who may face barriers to access, including language,literacy, awareness, finance, distance, or fear of reprisal;

Predictability (dispute resolution)A dispute mechanism must provide a clear and known procedure

with a time frame for each stage and clarity on the types ofprocess and outcome it can (and cannot) offer, as well as ameans of monitoring the implementation of any outcome;

Equity(dispute resolution)A dispute mechanism must ensure that aggrieved parties have

reasonable access to sources of information, advice andexpertise necessary to engage in a grievance process on fairand equitable terms;

Rights-compatibility (dispute resolution)


54

Labour Law Handbook (By Ojijo)A dispute mechanism must ensure that its outcomes and remedies

accord with internationally recognized human rightsstandards;

Transparent (dispute resolution)A dispute mechanism must provide sufficient transparency of

process and outcome to meet the public interest concerns atstake and should presume transparency wherever possible;non-State mechanisms in particular should be transparentabout the receipt of complaints and the key elements oftheir outcomes.


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Labour Law Handbook (By Ojijo)TYPES OF DISPUTE RESOLUTION METHODS

two types of dispute resolution processesDispute resolution processes fall into two major types: Adjudicative processes Consensual processes

Adjudicative processesAdjudicative processes, such as litigation or arbitration, in

which a judge, jury or arbitrator determines the outcome.Consensual processesConsensual processes, such as collaborative law, mediation,

conciliation, or negotiation, in which the parties attemptto reach agreement.

Conflict resolution, reconciliation Conflict resolution, otherwise known as reconciliation, is

conceptualized as the methods and processes involved infacilitating the peaceful ending of conflict andretribution. Often, committed group members attempt toresolve group conflicts by actively communicatinginformation about their conflicting motives or ideologies tothe rest of the group (e.g., intentions; reasons for holdingcertain beliefs), and by engaging in collective negotiation.Dimensions of resolution typically parallel the dimensionsof conflict in the way the conflict is processed. Cognitiveresolution is the way disputants understand and view theconflict, with beliefs and perspectives and understandingsand attitudes. Emotional resolution is in the way disputantsfeel about a conflict, the emotional energy. Behavioralresolution is how one thinks the disputants act, theirbehavior. Ultimately, a wide range of methods and proceduresfor addressing conflict exist, including but not limited tonegotiation, mediation, diplomacy, and creativepeacebuilding. The term conflict resolution may also be usedinterchangeably with dispute resolution, where arbitrationand litigation processes are critically involved.Furthermore, the concept of conflict resolution can bethought to encompass the use of nonviolent resistance


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Labour Law Handbook (By Ojijo)measures by conflicted parties in an attempt to promoteeffective resolution.

Conflict managementConflict management refers to the long-term management of

intractable conflicts. It is the label for the variety ofways by which people handle grievances—standing up for whatthey consider to be right and against what they consider tobe wrong. Those ways include such diverse phenomena asgossip, ridicule, lynching, terrorism, warfare, feuding,genocide, law, mediation, and avoidance. Which forms ofconflict management will be used in any given situation canbe somewhat predicted and explained by the social structure—or social geometry—of the case. Conflict management is oftenconsidered to be distinct from conflict resolution. In orderfor actual conflict to occur, there should be an expressionof exclusive patterns, and tell why the conflict wasexpressed the way it was. Conflict is not just about simpleinaptness, but is often connected to a previous issue. Thelatter refers to resolving the dispute to the approval ofone or both parties, whereas the former concerns an ongoingprocess that may never have a resolution. Neither is itconsidered the same as conflict transformation, which seeksto reframe the positions of the conflict parties.

Alternative dispute resolution (ADR), external disputeresolution

Alternative dispute resolution (ADR; known in some countries,such as Australia, as external dispute resolution) includesdispute resolution processes and techniques that act as ameans for disagreeing parties to come to an agreement shortof litigation. It is a collective term for the ways thatparties can settle disputes, with (or without) the help of athird party.

Despite historic resistance to ADR by many popular parties andtheir advocates, ADR has gained widespread acceptance amongboth the general public and the legal profession in recentyears. In fact, some courts now require some parties toresort to ADR of some type, usually mediation, beforepermitting the parties' cases to be tried (indeed theEuropean Mediation Directive (2008) expressly contemplates


57

Labour Law Handbook (By Ojijo)so-called "compulsory" mediation; this means that attendanceis compulsory, not that settlement must be reached throughmediation).

The rising popularity of ADR can be explained by theincreasing caseload of traditional courts, the perceptionthat ADR imposes fewer costs than litigation, a preferencefor confidentiality, and the desire of some parties to havegreater control over the selection of the individual orindividuals who will decide their dispute. Some of thesenior judiciary in certain jurisdictions (of which Englandand Wales is one) are strongly in favour of this (ADR) useof mediation to settle disputes.

Salient features of ADRADR is generally classified into at least four types:

negotiation, mediation, collaborative law, and arbitration.(Sometimes a fifth type, conciliation, is included as well,but for present purposes it can be regarded as a form ofmediation. See conciliation for further details.) ADR can beused alongside existing legal systems such as sharia courtswithin common law jurisdictions such as the UK.

ADR traditions vary somewhat by country and culture. There aresignificant common elements which justify a main topic, andeach country or region's difference should be delegated tosub-pages.

Alternative Dispute Resolution is of two historic types.First, methods for resolving disputes outside of theofficial judicial mechanisms. Second, informal methodsattached to or pendant to official judicial mechanisms.There are in addition free-standing and or independentmethods, such as mediation programs and ombuds officeswithin organizations. The methods are similar, whether ornot they are pendant, and generally use similar tool orskill sets, which are basically sub-sets of the skills ofnegotiation.

ADR includes informal tribunals, informal mediative processes,formal tribunals and formal mediative processes. The classicformal tribunal forms of ADR are arbitration (both bindingand advisory or non-binding) and private judges (eithersitting alone, on panels or over summary jury trials). The


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Labour Law Handbook (By Ojijo)classic formal mediative process is referral for mediationbefore a court appointed mediator or mediation panel.Structured transformative mediation as used by the U.S.Postal Service is a formal process. Classic informal methodsinclude social processes, referrals to non-formalauthorities (such as a respected member of a trade or socialgroup) and intercession. The major differences betweenformal and informal processes are (a) pendency to a courtprocedure and (b) the possession or lack of a formalstructure for the application of the procedure.

For example, freeform negotiation is merely the use of thetools without any process. Negotiation within a laborarbitration setting is the use of the tools within a highlyformalized and controlled setting.

Calling upon an organizational ombudsman's office is never, byitself, a formal procedure. Nno one can be compelled to usean ombuds office.

Organizational ombuds offices refer people to all conflictmanagement options in the organization: formal and informal,rights-based and interest-based. But, in addition, in partbecause they have no decision-making authority, ombudsoffices can, themselves, offer a wide spectrum of informaloptions.

This spectrum is often overlooked in contemporary discussionsof "ADR." "ADR" often refers to external conflict managementoptions that are important, but used only occasionally. Anorganizational ombuds office typically offers many internaloptions that are used in hundreds of cases a year. Theseoptions include:

delivering respect, for example, affirming the feelings of a visitor, while stayingexplicitly neutral on the facts of a case,

active listening, serving as a sounding board, providing and explaining information, one-on-one, for example, about policies

and rules, and about the context of a concern, receiving vital information, one-on-one, for example, from those reporting

unacceptable or illegal behavior, reframing issues, helping to develop and evaluate new options for the issues at hand,


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Labour Law Handbook (By Ojijo) offering the option of referrals to other resources, to "key people" in the relevant

department, and to managers and compliance offices, helping people help themselves to use a direct approach, for example, helping

people collect and analyze their own information, helping people to draft a letterabout their issues, coaching and role-playing,

offering shuttle diplomacy, for example, helping employees and managers tothink through proposals that may resolve a dispute, facilitating discussions,

offering mediation inside the organization, "looking into" a problem informally, facilitating a generic approach to an individual problem, for example instigating

or offering training on a given issue, finding ways to promulgate an existingpolicy,

identifying and communicating throughout the organization about "new issues," identifying and communicating about patterns of issues, working for systems change, for example, suggesting new policies, or

procedures, following up with a visitor, following up on a system change recommendation.40

Informal referral to a co-worker known to help people work out issues is aninformal procedure. Co-worker interventions are usually informal.

Conceptualizing ADR in this way makes it easy to avoidconfusing tools and methods (does negotiation once a lawsuitis filed cease to be ADR? If it is a tool, then the questionis the wrong question) (is mediation ADR unless a courtorders it? If you look at court orders and similar things asformalism, then the answer is clear: court annexed mediationis merely a formal ADR process).

Dividing lines in ADR processes are often provider drivenrather than consumer driven. Educated consumers will oftenchoose to use many different options depending on the needsand circumstances that they face.

Finally, it is important to realize that conflict resolutionis one major goal of all the ADR processes. If a processleads to resolution, it is a dispute resolution process.

Appropriate dispute resolution vis a vis Alternative disputeresolution

"Alternative" dispute resolution is usually considered to bealternative to litigation. It also can be used as a

40 See Rowe, Mary, Informality — The Fourth Standard of Practice, in JIOA,vol 5, no 1, (2012) pp 8–17.


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Labour Law Handbook (By Ojijo)colloquialism for allowing a dispute to drop or as analternative to violence.

In recent years there has been more discussion about taking asystems approach in order to offer different kinds ofoptions to people who are in conflict, and to foster"appropriate" dispute resolution.

That is, some cases and some complaints in fact ought to go toformal grievance or to court or to the police or to acompliance officer or to a government IG. Other conflictscould be settled by the parties if they had enough supportand coaching, and yet other cases need mediation orarbitration. Thus "alternative" dispute resolution usuallymeans a method that is not the courts. "Appropriate" disputeresolution considers all the possible responsible optionsfor conflict resolution that are relevant for a given issue.

ADR can increasingly be conducted online, which is known asonline dispute resolution (ODR, which is mostly a buzzwordand an attempt to create a distinctive product). It shouldbe noted, however, that ODR services can be provided bygovernment entities, and as such may form part of thelitigation process. Moreover, they can be provided on aglobal scale, where no effective domestic remedies areavailable to disputing parties, as in the case of the UDRPand domain name disputes. In this respect, ODR might notsatisfy the "alternative" element of ADR.

Benefits of ADRADR has been increasingly used internationally, both alongside

and integrated formally into legal systems, in order tocapitalise on the typical advantages of ADR over litigation:

Suitability for multi-party disputes Flexibility of procedure - the process is determined and controlled by the parties

to the dispute Lower costs Less complexity ("less is more") Parties choice of neutral third party (and therefore expertise in area of dispute)

to direct negotiations/adjudicate Likelihood and speed of settlements Practical solutions tailored to parties’ interests and needs (not rights and wants,

as they may perceive them)


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Labour Law Handbook (By Ojijo) Durability of agreements Confidentiality The preservation of relationships and the preservation of reputations

mediation In mediation, there is a third party, a mediator, who

facilitates the resolution process (and may even suggest aresolution, typically known as a "mediator's proposal"), butdoes not impose a resolution on the parties. In somecountries (for example, the United Kingdom), ADR issynonymous with what is generally referred to as mediationin other countries.

Mediation requires the parties to be well prepared andcommitted to the process, their decision makers at thetable, and a skilled mediator to work properly. When thathappens, mediation can be a very effective and successfuldispute resolution tool. The focus is on the real interestsof the parties, not their contractual or legalentitlements.41

It is frequently used domestically in common law jurisdictionssuch as the United States, England, Canada and Australia. Itis starting to slowly spread to civil law jurisdictions.

Mediation is the alternative dispute resolution (ADR) methodof choice in the business community, i.e., alternative fromlitigation and arbitration. It is overwhelmingly chosen overother ADR methods across different jurisdictions.

Mediation is faster and cheaper than arbitration42 and has ahigh success rate of settlement.43

Mediation can cost less than 5% of the cost of an arbitrationdealing with a similar dispute, take less than 15% of thetime of an arbitration and have a success rate in the 75% to

41 Herbert Smith LL P, The Inside Track: How Blue-Chips are Using ADR, (London UK, November 2007). This research is based on interviews with in-house lawyers at 21 leading multinational companies conducted by the Herbert Smith law firm in 2007.

42 See A. Timothy Martin, International Mediation: An Evolving Market, in Contemporary Issues in International Arbitration and Mediation, The Fordham Papers 2010 (A. Rovine, ed.).

43 Centre for Effective Dispute Resolution [CEDR], The Fourth Mediation Audit: A Survey of Commercial Mediator Attitudes and Experience, 8 (London, UK, 11 May 2010).


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Labour Law Handbook (By Ojijo)85% range. Despite those obvious advantages, it is stillinfrequently used in international disputes. There are anumber of reasons for mediation not being widely used ininternational business disputes including lack offamiliarity with the process, differences in culture,language and values, and the large distances separating theparties.

Finally, successful mediation requires compromise from allparties involved and some disputes simply do not lendthemselves to compromise.

An important thing to remember about mediation is that it isnot a legally binding process. The results of mediation onlybecome binding with a signed settlement agreement. It shouldtherefore be seen as an adjunct and not as a replacement toa binding process, such as international arbitration.

Despite its present infrequent use, it will likely grow as auseful and worthwhile international dispute resolution toolin appropriate circumstances with the support of companiesand mediation organizations.44

collaborative law, collaborative divorce In collaborative law or collaborative divorce, each party has

an attorney who facilitates the resolution process withinspecifically contracted terms. The parties reach agreementwith support of the attorneys (who are trained in theprocess) and mutually-agreed experts. No one imposes aresolution on the parties. However, the process is aformalized process that is part of the litigation and courtsystem. Rather than being an Alternative Resolutionmethodology it is a litigation variant that happens to relyon ADR like attitudes and processes.

arbitration , voluntary arbitration, mandatory arbitration In arbitration, participation is typically voluntary, and

there is a third party who, as a private judge, imposes aresolution. Arbitrations often occur because parties tocontracts agree that any future dispute concerning theagreement will be resolved by arbitration. This is known as

44 See the International Mediation Institute at: http://imimediation.org for more resources in this area.


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Labour Law Handbook (By Ojijo)a 'Scott Avery Clause'. In recent years, the enforceabilityof arbitration clauses, particularly in the context ofconsumer agreements (e.g., credit card agreements), hasdrawn scrutiny from courts. Although parties may appealarbitration outcomes to courts, such appeals face anexacting standard of review.

Beyond the basic types of alternative dispute resolutionsthere are other different forms of ADR:

Case evaluation: a non-binding process in which partiespresent the facts and the issues to a neutral case evaluatorwho advises the parties on the strengths and weaknesses oftheir respective positions, and assesses how the dispute islikely to be decided by a jury or other adjudicator.

Early neutral evaluationThis is a process that takes place soon after a case has been

filed in court. The case is referred to an expert who isasked to provide a balanced and neutral evaluation of thedispute. The evaluation of the expert can assist the partiesin assessing their case and may influence them towards asettlement.

Family group conferenceThis is a meeting between members of a family and members of

their extended related group. At this meeting (or often aseries of meetings) the family becomes involved in learningskills for interaction and in making a plan to stop theabuse or other ill-treatment between its members.

Neutral fact-findingThis is a process where a neutral third party, selected either

by the disputing parties or by the court, investigates anissue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complexscientific and factual disputes.

Ombud, OmbudsmanThis is a third party selected by an institution – for example

a university, hospital, corporation or government agency –to deal with complaints by employees, clients orconstituents. The Standards of Practice for Organizational


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Labour Law Handbook (By Ojijo)Ombuds may be found athttp://www.ombudsassociation.org/standards/.

An organizational ombudsman works within the institution tolook into complaints independently and impartially.

negotiation In negotiation, participation is voluntary and there is no

third party who facilitates the resolution process orimposes a resolution. (NB – a third party like a chaplain ororganizational ombudsperson or social worker or a skilledfriend may be coaching one or both of the parties behind thescene, a process called "Helping People Help Themselves".45

Negotiation between the parties at the time of a disputeusually happens as a matter of course. A provision fornegotiation may or may not be drafted into an agreement. Itcan be formalized as part of a multi-step dispute resolutionprocess. If it is, the agreement needs to set a clear timeframe when each step is finished. Otherwise, failure tocomplete one step can be used as an obstacle to get to abinding process. It is the least expensive of any disputeresolution method and potentially the most commerciallyviable solution. But it needs the full co-operation of theparties and a great deal of objectivity and detachment inthe parties’ behavior to avoid negative emotions andentrenched views that get in the way of a settlement. Itshould not be the only dispute resolution method relied uponsince it may likely result in no resolution.

FacilitationNeutral facilitators can help parties work together to

resolve disputes. Facilitators can organize meetings soparticipants can focus on the issues, contribute ideas andwork toward solutions. Facilitation ensures that meetingsstay party-focused, clarify points of agreement anddisagreement, model effective communication and listening,support all parties in participating fully, and encourageparents and schools to identify new options to addressunresolved problems.

45 see Helping People Help Themselves, in Negotiation Journal July 1990, pp. 239–248


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Labour Law Handbook (By Ojijo)Expert DeterminationExpert determination has been most often used in economic

valuations or technical assessments in natural resourcedisputes. The decision of an expert is not enforceable as anarbitration award but only as a contract between the partiesin court systems around the world. It would require thewritten agreement of the parties. It is only effective inhighly technical matters, but has difficulty when there arematters of both fact and law being disputed (which is thecase for many disputes). It is not widely used ininternational disputes and when it is, it should be usedonly on narrow technical grounds. A number of internationalinstitutions, such as the ICC International Centre forExpertise, provide lists of experts and administeredservices in this area.46

Dispute Review BoardDispute review boards began in the U.S. construction industry

and have spread into the international constructionindustry. They usually consist of a three member board thatis appointed for the duration of a large constructionproject. They have proven to be quite effective in theconstruction industry, but have not spread to the energysector in any significant manner. If they were used, theywould be most effective in the construction of large energyinfrastructure projects. A number of institutions provideassistance and services in this area.47

Administrative BoardsThese are boards established by statute for various specific

industries, to enable the resolution of disputes in thesesectors, before the matter can be litigious. The most commonones are:

labour review boards military review boards land boards water boards

46 See http://www.iccwbo.org/court/adr for more details on their services.47 This includes the ICC, the International Centre for Dispute Resolution

(ICDR) at: http://www.adr.org/sp.asp?id=28819 and the Dispute Review Federation at: http://dbfederation.org.


66

Labour Law Handbook (By Ojijo)LitigationLitigation in the courts is the most familiar dispute

resolution tool to lawyers. It is most frequently used inthe domestic energy business with parties from the samejurisdiction (in particular in the U.S., Canada, the UK andAustralia). It is not the preferred forum for internationaldisputes for a number of reasons including problems inenforcing court judgments in foreign jurisdictions, cost andlength of trials, and aversion to local courts by foreigninvestors. As a result, it is rarely chosen as a disputeresolution mechanism in international natural resourceagreements.48 It is sometimes chosen in internationalnatural resource agreements when all the parties come fromthe same jurisdiction and they are all comfortable with thecourts of their home country.

ArbitrationArbitration is the most widely accepted and used dispute

resolution method in the international energy sector. It isa legally binding process that provides the most flexibilityto parties in how they want to resolve their dispute.Arbitration provides many advantages including allowingparties to choose their arbitrators, selecting the kind andextent of their arbitration process, and choosing the venueand forum where the arbitration will be held. It also hasthe advantage of the recognition and enforcement of arbitralawards in foreign jurisdictions, which court judgmentsgenerally do not have.

Along with that flexibility comes a number of problems,including that adverse parties can make the process look alot like litigation resulting in high costs and timeconsuming processes.

Companies can adopt a number of strategies to manage time andcost concerns in international arbitration that arediscussed. Despite some of its shortcomings, when given achoice between the only two legally binding dispute

48 An example is the development of the AIPN Model JOA. The first two versions included the alternative of court litigation. That was eliminated in the third and last version of the AIPN Model JOA. The onlybinding process now provided is international arbitration.


67

Labour Law Handbook (By Ojijo)resolution processes available—local courts and arbitration—international businesses always choose internationalarbitration.

international arbitrationInternational arbitration is a leading method for resolving

disputes arising from international commercial agreementsand other international relationships. As with arbitrationgenerally, international arbitration is a creation ofcontract, i.e., the parties' decision to submit disputes tobinding resolution by one or more arbitrators selected by oron behalf of the parties and applying adjudicatoryprocedures, usually by including a provision for thearbitration of future disputes in their contract. Thepractice of international arbitration has developed so as toallow parties from different legal and cultural backgroundsto resolve their disputes, generally without the formalitiesof their respective legal systems.

International arbitration has enjoyed growing popularity withbusiness and other users over the past 50 years. There are anumber of reasons that parties elect to have theirinternational disputes resolved through arbitration. Theseinclude the desire to avoid the uncertainties and localpractices associated with litigation in national courts, thedesire to obtain a quicker, more efficient decision, therelative enforceability of arbitration agreements andarbitral awards (as contrasted with forum selection clausesand national court judgments), the commercial expertise ofarbitrators, the parties' freedom to select and design thearbitral procedures, confidentiality and other benefits.

International arbitration is sometimes described as a hybridform of dispute resolution, which permits parties broadflexibility in designing arbitral procedures. As oneexample, consider the International Bar Association (IBA)'sRules on the Taking of Evidence in International CommercialArbitration, revised in 2010. These rules adopt neither thecommon law jurisdictions' broad disclosure procedures(Discovery), nor follow fully the civil law in eliminatingentirely the ability to engage in some disclosure-relatedpractices. The IBA Rules blend common and civil systems so


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Labour Law Handbook (By Ojijo)that parties may narrowly tailor disclosure to theagreement's particular subject matter.

Rules of evidence represents just one example of the differentpractice that applies to international arbitration, andwhich distinguishes it from provincial forms of arbitrationrooted in the procedures of a particular legal system. Thereare a variety of approaches to international arbitration atthe national level, even where model laws have been adopted.These approaches can be further impacted by arbitral rulesthat may be agreed between the parties. Similarly,international arbitral practice has given rise to its ownnon-country-specific standards of ethical conduct which arebelieved to apply in international proceedings and, more tothe point, to the arbitrators who are appointed to conductthem.

International arbitration is a significant variant of thepractice in many countries of arbitration, from which it isderived and shares many features. It is not just the factthat international arbitration arises in the context ofinternational contracts that makes it different. In theinternational dispute resolution community, it is widelyaccepted to be a different animal entirely, involvingdifferent practices and rules, and being represented by adifferent community of arbitrators and legal practitioners.

It is essential to draw a firm distinction between Arbitrationand Mediation or Conciliation, which are both sometimescharacterized as forms of ADR (Alternative DisputeResolution). In countries where mediation is new orstruggling to be introduced as a concept, this associationhas given rise to the misleading impression that mediationis a form of non-binding arbitration, with the arbitratorproposing or suggesting outcomes based on an assessment ofthe parties' rights. In fact, arbitration and mediation orconciliation are fundamentally different: the former is abinding determination of legal rights, the latter two formsof dispute resolution involve facilitated negotiation whichaims at producing a consensual settlement. The one leads toa binding determination (arbitration), the other only in theevent the parties agree to settle their dispute on mutuallysatisfactory terms (mediation).


69

Labour Law Handbook (By Ojijo)international litigation, transnational litigationInternational litigation (sometimes called "transnational

litigation") is the practice of litigation in connectionwith disputes among businesses or individuals residing orbased in different countries.


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Labour Law Handbook (By Ojijo)INTERNATIONAL LITIGATION, CONFLICT OF LAWS

International litigation International litigation (sometimes called "transnational

litigation") is the practice of litigation in connectionwith disputes among businesses or individuals residing orbased in different countries.

The main difference between international litigation anddomestic litigation is that, in the former, certain issuesare more likely to be of significance — such as personaljurisdiction, service of process, evidence from abroad, andenforcement of judgments.

Jurisdiction (International litigation), Long arm jurisdictionLong arm jurisdiction is the statutory grant of jurisdiction

to local courts over out-of-state defendants. A long-armstatute authorizes a court in a state to exercisejurisdiction over an out-of-state defendant. Without a longarm statute, the courts in a state might not have personaljurisdiction over an out-of-state defendant. The use of along arm statute is usually considered constitutional wherethe defendant has certain minimum contacts with the forumstate and there has been reasonable notice of the actionagainst that defendant.

Service of process (International litigation)In every lawsuit, the plaintiff must effect service of process

upon the defendant(s). In the international context, theissue of service of process is more complex.

In the local courts, service of process is routinely carriedout by private lawyers or their agents. In contrast, manyother countries consider the activity of serving process ina judicial proceeding to be one appropriate only for thegovernment or an arm of the government.

As a result of differing approaches to the issue of service ofprocess, several nations signed the Hague Service Convention(1965), under which each member nation is required toestablish a Central Authority to receive, review, andexecute requests from foreign courts for carrying outservice of process.


71

Labour Law Handbook (By Ojijo)Most countries that are signatories to the Hague Service

Convention will accept requests for service that are signedby the lawyer for the plaintiff (claimant). Two exceptionsare the UK and Israel.

Any lawyer who ignores the international aspects of service ofprocess when suing a non-US defendant might find that theresulting judgment cannot be enforced where the defendants'assets are available.

Evidence (International litigation)In contrast to the domestic situation, when a party to an

international dispute needs to obtain evidence located in aforeign country, that party will usually need to make arequest of the local court for it (the court) to issue aLetter of Request pursuant to the Hague Evidence Convention.Under the HEC, each member state is required to designate aCentral Authority to receive, review, and carry out incomingrequests to obtain evidence from persons (or other entities)located in the receiving country.

Trial considerations (International litigation)Once a lawsuit proceeds past the discovery stage and is ready

for trial, the differences between domestic litigation andinternational litigation are much less pronounced. Dependingupon the language sophistication of the witnesses on behalfof the non-local party, it might be necessary to arrange foran interpreter to translate trial testimony. Interpreterscost money, which increases the costs of the trial.

Recognition and enforcement (International litigation)The Hague Convention on the Recognition and Enforcement of

Foreign Judgments in Civil and Commercial Matters is amultilateral treaty governing the enforcement of judgmentsentered by one nation's legal authorities in other signatorynations. It is one of a number of conventions in the area ofPrivate International Law of the Hague Conference on PrivateInternational Law in 1971.

Most states have enacted the Foreign Judgments RecognitionStatues which governs the recognition of non-localjudgments.


72

Labour Law Handbook (By Ojijo)As a general rule, grounds for non-recognition can be

predicated upon: Lack of conclusiveness: if the judgment was rendered under a system which does

not provide impartial tribunals or procedures compatible with the requirementsof due process of law.

the foreign court did not have personal jurisdiction over the defendant. The foreign court did not have jurisdiction over the subject matter; The defendant in the proceedings in the foreign court did not receive notice of

the proceedings in sufficient time to enable him to defend; The judgment was obtained by fraud; The cause of action on which the judgment is based is repugnant to the public

policy of the state where enforcement is sought; The judgment conflicts with another final and conclusive judgment; The proceeding in the foreign court was contrary to an agreement between the

parties under which the dispute in question was to be settled otherwise than byproceedings in that court; or

In the case of jurisdiction based only on personal service, the foreign court was aseriously inconvenient forum for the trial of the action; or

The judgment seeks to enforce the revenue and taxation laws of a foreignjurisdiction.


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Labour Law Handbook (By Ojijo)INTERNATIONAL ARBITRATION

Legal Framework for International ArbitrationThere are a number of elements that together provide an

effective and enforceable legal framework for internationalarbitration. They are the:

Arbitration Agreement or Clause Arbitration Conventions and Investment Treaties Arbitration Procedural Rules National Laws National Courts

Arbitration AgreementThe arbitration agreement or dispute resolution clause is the

foundation of international arbitration. It is based on theprinciple of party autonomy, i.e., parties have the right todecide how and where they wish to resolve their disputes andto provide for that in their contracts in a binding,enforceable manner. Given the flexibility of internationalarbitration, parties need to maximize their benefits whileminimizing their risks by carefully drafting their disputeresolution clauses.

principle of party autonomyAccording to this principle, the parties in an international

dispute have the right to decide how and where they wish toresolve their disputes and to provide for that in theircontracts in a binding, enforceable manner.

Arbitration Conventions and Investment TreatiesThere are a number of international conventions and treaties

that provide for the recognition and enforcement of arbitralawards and the protection of investments. They are:

New York ConventionThe first and most important convention in the international

arbitration world is the United Nations Convention on theRecognition and Enforcement of Foreign Arbitral Awards (“NewYork Convention”) that came into force in 1958. This is theprimary convention used to recognize, enforce, and challengeinternational arbitral awards. To access the benefits of


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Labour Law Handbook (By Ojijo)this convention the seat of the arbitration should be in acountry that is a signatory to the Convention and thecounter-party (or its assets) against whom an agreement oraward is to be enforced should be from a country that is aparty to the New York Convention.49

Regional ConventionsThere are a number of regional conventions that replicate the

benefits of the New York Convention.One is the Inter-American Convention on International

Commercial Arbitration (“Panama Convention”) that came intoforce in 1975. There are a total of 19 signatories,including the U.S. and many of the Latin American countries.In the U.S., the Panama Convention applies over the New YorkConvention if a majority of the signatories to thearbitration agreement are citizens of states that haveratified the Panama Convention and are members of theOrganization of American States.

Other regional conventions include the Arab Convention onCommercial Arbitration (Amman, 1987), the EuropeanConvention (Geneva, 1961) and the Moscow Convention (1972).

Washington or ICSID ConventionThe Convention on the Settlement of Investment Disputes

between States and Nationals of Other States (“WashingtonConvention” or “ICSID Convention”) came into force in 1966.It provides for the resolution of disputes between hostStates and foreign investors. The International Centre forthe Settlement of Investment Disputes (“ICSID”), which is abranch of the World Bank in Washington, D.C., administersthis convention.

Contracting States Ratifying States are called “Contracting States” under the

Convention.50 Contracting States improve their investmentclimate through ratifying the ICSID Convention and investors

49 Current status of the NY Convention is available at: http://www.uncitral.org/.

50 15 Current status of the ICSI D Convention is available at: http://icsid.worldbank.org/ICSI D


http://www.uncitral.org/

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Labour Law Handbook (By Ojijo)gain direct access to an effective forum that provides itsown enforcement mechanism.

ICSID provides facilities for arbitration or conciliationwhere investors in foreign countries can have a fair hearingand access a self-enforcing mechanism for awards issuedunder the Convention. In order for this to work effectively,sovereign governments that are signatories to the Conventionwaive their sovereign immunity from lawsuits and claims andtheir courts are required to accept the awards withoutreview. The reality is that ICSI D awards must still beenforced in local courts, which have sometimes ignored thisrequirement. To ensure that this waiver is treated properly,the Convention requires that strict conditions must be metbefore it can be invoked. An investor initiating a claimunder the provisions of ICSID must satisfy the. Secretariatof ICSID that the claim properly falls within itsjurisdiction. In particular, three conditions must befulfilled:

Parties must agree in their investment contract that disputes will be submitted toICSID arbitration.

The dispute must be between a Contracting State and a national of anotherContracting State.

The claim must be a legal dispute arising directly out of a qualified investment.

The issue of jurisdiction is disputed in many ICSIDproceedings by States that want to stop claims against them.Arguments to prevent jurisdiction include the nature of thedispute, the nature of the investment, whether the investorhas exhausted its local remedies, whether the dispute iswith the State, the identity of the investor, and whetherthe State has consented to jurisdiction. A Contracting Statecan notify ICSID that it chooses not to submit certainclasses of disputes, such as disputes dealing with naturalresource investments, to ICSID jurisdiction. Also consent bya constituent subdivision or agency of a Contracting State,such as a national oil company, requires the approval ofthat State unless the State notifies ICSID that no approvalis required. It is therefore important for companies toobtain qualified legal advice prior to making investments inforeign countries and negotiating host government agreementsto access the benefits of the ICSID Convention.


76

Labour Law Handbook (By Ojijo)Advance consent by member states may be found in BITs and in

multilateral trade agreements such as the Energy CharterTreaty, the North American Free Trade Agreement (NAFTA), theCentral American Free Trade Agreement (CAFTA), the CartagenaFree Trade Agreement, and the Colonia Investment Protocol ofMercosur.

In addition, ICSID has its Additional Facility Rules forcertain types of disputes falling outside the scope of theConvention.

Energy Charter TreatyThe Energy Charter Treaty (“ECT”)51 entered into force in April

1998. As its name implies, the ECT focuses on energyinvestments, in particular upstream and transit investmentsin Eastern and Western Europe. It provides investmentpromotion and protection, including prohibitions onexpropriation, and dispute resolution mechanisms for thoseinvestments. There are 51 member states in addition to theEuropean Community, 47 of whom have ratified the treaty.There are 23 observer states and 10 international observerorganizations (NGOs). Observer states include the UnitedStates, Canada and China. Russia withdrew provisionalapplication of its member status effective 20 October 2009.The ECT provides for provisional application of the ECT tosignatories even if not yet ratified by the State. Theprotections of the ECT continue for 20 years after theeffective date of withdrawal from ECT for investmentsexisting at the time of withdrawal. The ECT allows states toelect in advance to deny the advantages of investmentprotections from certain individuals, such as mailboxcompanies.

The ECT provides dispute resolution mechanisms for disputesbetween parties to the treaty (i.e., States), transitdisputes, trade disputes, competition and environmentaldisputes, and disputes between investors and hostgovernments.

An investor can choose to arbitrate its dispute in any of thefollowing fora:

51 See http://www.encharter.org for more details.


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Labour Law Handbook (By Ojijo) ICSID if the Contracting Party and the Investor’s state are both parties to the

Washington Convention ICSID under the Additional Facility Rules if one state is a party to the Washington

Convention Ad hoc arbitration under the UNCITRAL Rules Arbitration Institute of the Stockholm Chamber of Commerce (SCC) under its

rules.

Unless a State has previously elected so, there is no “fork inthe road” provision that would prevent an investor frompursuing an action under the ECT after attempting redress inanother forum.

Bilateral Investment TreatiesBilateral Investment Treaties (“BITs”) are treaties between

two countries designed to encourage and protect investmentsbetween the two countries.

The first BIT was signed between Germany and Pakistan morethan 50 years ago. There are now more than 2,500 BITs andgrowing. A BIT would usually contain provisions for:

No direct or indirect expropriation Fair and equitable treatment of investments Most favored nation status

Investors may be able to take advantage of terms in BITsbetween the host state where it is making its investment andother countries either when the other BIT is more favorablethan those in the

BIT between the state and the investor’s originating countryor when the investor’s originating country does not have aBIT with the host state.

An investor accomplishes this by incorporating its investmentcompany and carrying out its business through the otherState with the more favorable BIT. Criteria for qualifyingas an investor vary from one BIT to another, so qualifiedlegal advice is needed in structuring such investments.

A BIT may contain a “fork in the road” provision forinitiating disputes, i.e., the investor must choose eitherlitigation in the local courts, arbitration under thecontract, or arbitration of its treaty claims through ICSIDor its additional facilities.


78

Labour Law Handbook (By Ojijo)An election to follow a certain path will prevent following

another path later on; i.e., choosing to arbitrate under thecontract will constitute an election not to proceed underthe BIT at ICSID. This provision is found in the standardform U.S. BIT.

Multilateral Trade Agreements There are a number of multilateral trade agreements including

NAFTA and CAFTA. Both agreements contain provisionsrequiring the signatory States to encourage internationalcommercial arbitration and arbitration provisions for stateto state disputes and investor-state disputes.

Arbitration Procedural RulesAll arbitrations are subject to the procedural rules of the lex

arbitri, i.e., the arbitration laws of the place ofarbitration. However, those rules tend to be broad and non-specific. Therefore the parties need to agree upon adetailed set of procedural rules to conduct theirarbitration. They have basically two choices—ad hoc orinstitutional arbitration. An ad hoc arbitration is one thatis conducted pursuant to rules agreed by the parties ordetermined by the arbitration tribunal. An institutionalarbitration is one that is conducted using the rules of aspecialized arbitration institution and which isadministered by that institution.

In addition to the arbitration procedural rules, parties oftenneed to agree upon more detailed evidentiary rules in large,complex arbitrations.

The most well known and used rules are the IBA Rules on theTaking of Evidence in International Arbitration52 and formore guidance on the production of documents and exchange ofinformation the ICDR Guidelines for Arbitrators ConcerningExchanges of Information53 are being increasingly relied

52 I BA Rules on the Taking of Evidence in International Arbitration (International Bar Association) adopted by a resolution of the IBA Council on 29 May 2010. Available at http://www.ibanet.org.

53 I CDR Guidelines for Arbitrators Concerning Exchanges of Information (International Centre for Dispute Resolution, the international arm of the American Arbitration Association). Effective 1 June 2008. Available at http://www.adr.org.


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Labour Law Handbook (By Ojijo)upon. Parties can agree upon these additional evidentiaryrules either in their dispute resolution clause or in theprocedural order issued by the tribunal at the beginning ofthe arbitration.

National LawsThe national laws of a country implement the rights and

obligations of the arbitral conventions and treatiesdescribed above. They provide the enforcement mechanisms forarbitration agreements and awards, along with filling in thegaps in parties’ arbitration agreements or disputeresolution clauses. In addition, national laws govern thenullification or setting aside of awards rendered in acountry and the waiver of sovereign immunity.

Most countries have laws that deal with both domestic andinternational arbitration, including how their courtsrecognize, deal with challenges of and enforce arbitralawards. Many countries have adopted, either entirely orsubstantially, the UNCITRAL Model Law on InternationalCommercial Arbitration as their law dealing withinternational arbitration.54 The United States and theUnited Kingdom are exceptions with their respective U.S.Federal Arbitration Act and English Arbitration Act, 1996.55

National CourtsThe national courts provide the muscle to enforce arbitration

agreements and awards. They also provide orders in aid ofarbitration, such as interim relief and measures to preserveevidence, documentary disclosure and the attendance ofwitnesses. Courts ensure procedural due process and thefundamental fairness of arbitral proceedings.

Courts can also stymie, derail, and undo the arbitral process,which emphasizes the importance in selecting the seat of thearbitration since it is those courts that will eithersupport or obstruct the arbitration.

Arbitration provides finality in the resolution of aninternational dispute. But that means it is not appealable

54 See http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration.htmlfor more details.

55 See http://www.legislation.gov.uk/ukpga/1996/23/contents for more details.


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Labour Law Handbook (By Ojijo)on mistakes of law or fact, and can only be challenged invery limited circumstances.

All of this reinforces the need to draft the disputeresolution clause properly.


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Labour Law Handbook (By Ojijo)NATIONAL DISPUTE RESOLUTION INSTITUTIONS

ombudsman, public advocate , Inspector General, CitizenAdvocate, Children's Ombudsman and Information Commissioner,Parliamentary Commissioner

An ombudsman or public advocate is usually appointed by thegovernment or by parliament, but with a significant degreeof independence, who is charged with representing theinterests of the public by investigating and addressingcomplaints of maladministration or a violation of rights. Insome countries an Inspector General, Citizen Advocate orother official may have duties similar to those of anational ombudsman, and may also be appointed by alegislature. Below the national level an ombudsman may beappointed by a state, local or municipal government.Unofficial ombudsmen may be appointed by, or even work for,a corporation such as a utility supplier, newspaper, NGO, orprofessional regulatory body.

The typical duties of an ombudsman are to investigatecomplaints and attempt to resolve them, usually throughrecommendations (binding or not) or mediation. Ombudsmensometimes also aim to identify systematic issues leading topoor service or breaches of people's rights. At the nationallevel, most ombudsmen have a wide mandate to deal with theentire public sector, and sometimes also elements of theprivate sector (for example, contracted service providers).In some cases, there is a more restricted mandate, forexample with particular sectors of society. More recentdevelopments have included the creation of specializedChildren's Ombudsman and Information Commissioner agencies.

In some jurisdictions an ombudsman charged with handlingconcerns about national government is more formally referredto as the "Parliamentary Commissioner" (e.g. the UnitedKingdom Parliamentary Commissioner for Administration, andthe Western Australian state Ombudsman). In many countrieswhere the ombudsman's responsibility includes protectinghuman rights, the ombudsman is recognized as the nationalhuman rights institution. The post of ombudsman had by theend of the 20th century been instituted by most governments


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Labour Law Handbook (By Ojijo)and by some intergovernmental organizations such as theEuropean Union.

tribunal A tribunal in the general sense is any person or institution

with the authority to judge, adjudicate on, or determineclaims or disputes—whether or not it is called a tribunal inits title. For example, an advocate appearing before a courton which a single judge was sitting could describe thatjudge as 'their tribunal'. Many governmental bodies that aretitled 'tribunals' are so described to emphasize that theyare not courts of normal jurisdiction. For example, theInternational Criminal Tribunal for Rwanda is a bodyspecially constituted under international law; in GreatBritain, employment tribunals are bodies set up to hearspecific employment disputes. Private judicial bodies arealso often styled 'tribunals'. The word tribunal is notconclusive of a body's function. For example, in GreatBritain, the Employment Appeal Tribunal is a superior courtof record.

The term is derived from the tribunes, magistrates of theClassical Roman Republic. "Tribunal" originally referred tothe office of the tribunes, and the term is still sometimesused in this sense in historical writings.

court A court is a tribunal, often a governmental institution, with

the authority to adjudicate legal disputes between partiesand carry out the administration of justice in civil,criminal, and administrative matters in accordance with therule of law. In both common law and civil law legal systems,courts are the central means for dispute resolution, and itis generally understood that all persons have an ability tobring their claims before a court. Similarly, the rights ofthose accused of a crime include the right to present adefense before a court.

The system of courts that interprets and applies the law iscollectively known as the judiciary. The place where a courtsits is known as a venue. The room where court proceedingsoccur is known as a courtroom, and the building as acourthouse; court facilities range from simple and very


83

Labour Law Handbook (By Ojijo)small facilities in rural communities to large buildings incities.

The practical authority given to the court is known as itsjurisdiction (Latin jus dicere) – the court's power todecide certain kinds of questions or petitions put to it.According to William Blackstone's Commentaries on the Lawsof England, a court is constituted by a minimum of threeparties: the actor or plaintiff, who complains of an injurydone; the reus or defendant, who is called upon to makesatisfaction for it, and the judex or judicial power, whichis to examine the truth of the fact, to determine the lawarising upon that fact, and, if any injury appears to havebeen done, to ascertain and by its officers to apply a legalremedy. It is also usual in the superior courts to haveattorneys, and advocates or counsel, as assistants, though,often, courts consist of additional attorneys, bailiffs,reporters, and perhaps a jury.

The term "the court" is also used to refer to the presidingofficer or officials, usually one or more judges. The judgeor panel of judges may also be collectively referred to as"the bench" (in contrast to attorneys and barristers,collectively referred to as "the bar"). In the UnitedStates, and other common law jurisdictions, the term "court"(in the case of U.S. federal courts) by law is used todescribe the judge himself or herself.

In the United States, the legal authority of a court to takeaction is based on personal jurisdiction, subject-matterjurisdiction, and venue over the parties to the litigation.

administrative review boardsReview of administrative decisions refers to a method where

courts review decisions made by the administrative agenciesauthorized to enforce legislative mandates. Any potentialparty affected by the decision of an administrative agencycan petition for a review. However, a court that reviewsdecision of an administrative agency gives a decision mostfavorable to the agency. If the agency’s decision isreasonable according to the evidence provided or if theevidence supports the decision, then the court will confirmthe decision of the agency. An Administrative Law Judge


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Labour Law Handbook (By Ojijo)(ALJ) is an official who presides at an administrativehearing to resolve disputes between a government agency andsomeone affected by a decision or action of that agency.

Generally, decisions made by an Administrative Law Judge (ALJ)can be reviewed by the filing of a request for review. Whenan ALJ renders a decision called an administrative order, itmay be reviewed by either a higher level within the agencyor by a court. A person denied claim by an ALJ must "exhausthis/her administrative remedies" (take every step, includingappeals) with the agency and its system before theadministrative ruling may be appealed by a lawsuit in court.Parties can petition to the circuit court if there is anorder by the agency that is not final and which decidesrights and liabilities; which has legal consequences thatfollow immediately after the order; and waiting for a finaldecision which might result in an irreparable harm, damageor loss.

A person who files a petition against the agency decision iscalled the petitioner. A petitioner has to file a petitionwithin 30 days after the agency decision, the date agencysent notice of its decision or date when the notice ofagency decision was received whichever is earlier. Petitionscan be filed in a circuit court for the county where thepetitioner resides or carries on his business. Filing feesare waived by the court for people who are unable to pay. Atthe time of filing, advance filing fees must be paid unlessit is an appeal from certain specific departments.

Center for Alternative Dispute ResolutionThe Center for Alternative Dispute Resolution works with

organizations and individuals to increase the knowledge,quality, and use of alternative dispute resolution (ADR).The Center serves as an information resource to both DOT ADRproviders and users. ADR is designed to assist parties inresolving differences. These processes involve a third partyneutral and are typically voluntary. ADR does not replacemore traditional dispute resolution mechanisms but merelyoffers an alternative. If an ADR process does not resolve aconflict, you retain all rights to pursue more traditionalapproaches.


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Labour Law Handbook (By Ojijo)The Center offers awareness and skill-based training workshops

on a variety of topics. The Center partners with the Officeof the Dispute Resolution Specialist at the Department ofHealth and Human Services to offer this training. Workingtogether, we offer a variety of courses, instructors, andcoaches to our employees and provide them with opportunitiesto learn in a diverse environment and to recognize that theissues they face occur in a variety of organizationalsettings.

arbitral tribunal, arbitration tribunal An arbitral tribunal (or arbitration tribunal) is a panel of

one or more adjudicators which is convened and sits toresolve a dispute by way of arbitration. The tribunal mayconsist of a sole arbitrator, or there may be two or morearbitrators, which might include either a chairman or anumpire. The parties to a dispute are usually free to agreethe number and composition of the arbitral tribunal. In somelegal systems, an arbitration clause which provides for two(or any other even number) of arbitrators is understood toimply that the appointed arbitrators will select anadditional arbitrator as a chairman of the tribunal, toavoid deadlock arising. Different legal systems differ as tohow many arbitrators should constitute the tribunal if thereis no agreement.

Arbitral tribunals are usually constituted (appointed) in twotypes of proceedings:

ad hoc arbitration proceedings institutional arbitration proceedings

ad hoc arbitration proceedingsAd hoc arbitration proceedings are those in which the

arbitrators are appointed by the parties without asupervising institution, relying instead on the procedurallaw and courts of the place of arbitration to resolve anydifferences over the appointment, replacement, or authorityof any or all of the arbitrators; and

institutional arbitration proceedings , Permanent tribunals Institutional arbitration proceedings are those in which the

arbitrators are appointed under the supervision of


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Labour Law Handbook (By Ojijo)professional bodies providing arbitration services, such asthe American Arbitration Association (which conductsinternational proceedings through its New York-baseddivision, the ICDR), the LCIA in London or the ICC in Paris.Although these institutions (and many others) areheadquartered in their respective cities, they are capableof supervising the appointment of arbitral tribunals innearly any country, avoiding the need for the parties toinvolve local courts and procedures in the event ofdisagreement over the appointment, replacement, or authorityof any or all of the arbitrators.

Permanent tribunals tend to have their own rules andprocedures, and tend to be much more formal. They also tendto be more expensive, and, for procedural reasons, slower.


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Labour Law Handbook (By Ojijo)INTERNATIONAL DISPUTE RESOLUTION INSTITUTIONS

international judicial institutionsInternational judicial institutions can be divided into

courts, arbitral tribunals and quasi-judicial institutions.Courts are permanent bodies, with near the same compositionfor each case. Arbitral tribunals, by contrast, areconstituted anew for each case. Both courts and arbitraltribunals can make binding decisions. Quasi-judicialinstitutions, by contrast, make rulings on cases, but theserulings are not in themselves legally binding; the mainexample is the individual complaints mechanisms availableunder the various UN human rights treaties.

Institutions can also be divided into global and regionalinstitutions.

International courts International Court of Justice International Tribunal for the Law of the Sea International Criminal Tribunal for the Former Yugoslavia International Criminal Tribunal for Rwanda International Criminal Court International Military Tribunal (Defunct) International Military Tribunal for the Far East (Defunct) International Prize Court (Never established) Permanent Court of International Justice (Defunct. Replaced by the International

Court of Justice)

International arbitral tribunals Permanent Court of Arbitration WTO Appelate Body WTO Dispute Settlement Panels NAFTA Dispute Settlement Panels International Centre for the Settlement of Investment Disputes Court of Arbitration for Sport OSCE Court of Conciliation and Arbitration

Quasi-judicial international institutions Human Rights Committee Committee on the Elimination of Racial Discrimination


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Labour Law Handbook (By Ojijo) Committee on the Elimination of Discrimination Against Women Committee on Economic, Social and Cultural Rights Committee on the Rights of the Child Committee Against Torture Committee on Migrant Workers Committee on the Rights of Persons with Disabilities

international dispute resolution institutions Three of the most well known and frequently used international

dispute resolution institutions, the International Chamberof Commerce (ICC), the London Court of InternationalArbitration (LCIA), and the International Centre for DisputeResolution (ICDR), which is the international division ofthe American Arbitration Association, only administer about100 mediations a year compared to over 1,800 arbitrationsregistered per year at all three institutions.


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Employment ContractsELEMENTS OF EMPLOYMENT CONTRACT, CONTRACT OF SERVICE

contract of service, employment contract A contract of service is any agreement whether in writing or

verbal, expressed or implied, whereby:¯ One person agrees to employ another as an employee; and¯ The other person agrees to serve the employer as an employee.¯ An apprenticeship contract or agreement is also considered a contract of service.¯ A contract of service can be in the form of a letter of appointment/employment.¯ The employer cannot change the terms and conditions of employment unless the

employee agrees to it.

Any terms and conditions of employment, in a contract of service,that is less favourable than the relevant provision under theEmployment Act is illegal, null and void. The provision in theAct will take precedence over a particular contractual termthat is less favourable.

Difference between a Contract of Service and a Contract forService

employment contractA contract of employment is a category of contract used in labour

law to attribute right and responsibilities between parties toa bargain. The contract is between an "employee" and an"employer." It has arisen out of the old master-servant law,used before the 20th century. But generally, the contract ofemployment denotes a relationship of economic dependence andsocial subordination. In the words of the controversial labourlawyer Sir Otto Kahn-Freund,

"the relation between an employer and an isolated employee orworker is typically a relation between a bearer of power andone who is not a bearer of power. In its inception it is anact of submission, in its operation it is a condition ofsubordination, however much the submission and thesubordination may be concealed by the indispensable figment ofthe legal mind known as the 'contract of employment'. The mainobject of labour law has been, and... will always be acountervailing force to counteract the inequality of


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Labour Law Handbook (By Ojijo)bargaining power which is inherent and must be inherent in theemployment relationship."56

An employment contract can be in writing or verbal.contract for serviceContract for a job undertaken by a self employed person. While he

or she may hire others to carry out (or help) in the work, heor she is solely responsible for the satisfactory completionof the job.

course of employmentCourse of employment is a legal consideration of all

circumstances which may occur in the performance of a person'sjob, especially during a period of time where specificobjectives are given by the employer to the employee.57 Keyexamples of this consideration under US law can include tortliability or ownership of intellectual property. If anemployee is driving a motor vehicle during working hours andharms the person or property of another, a court wouldconsider course of employment to determine if the employer hadvicarious liability for the harm. Extreme examples wouldlikely find the employer is liable for a truck driver on hisassigned route but not for a secretary picking up her childfrom day care. Similarly the employer would likely own thecopyright rights to a song written by an employee who washired as a composer, but not if the employee was hired as anaccountant.

indefinite contract, contract to be writtenEmployment contract should be concluded in a written form. The

failure of the parties to conclude a contract in a writtenform does not affect the existence and validity of thatcontract. If the employer fails to conclude the contract in awritten form with the employee or does not issue a writtenconfirmation of the conclusion of the contract before thebeginning of the employment, it will be considered that theemployment contract is for an indefinite period of time.

Lowest age limit of an employee

56 Labour and the Law, Hamlyn Lectures, 1972, 757 Black's Law Dictionary (2nd Pocket ed. 2001) pg. 154.


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Labour Law Handbook (By Ojijo)Persons younger than 15 or persons who are 15 years of age or

older, but bellow 18, and who are still attending compulsoryprimary education, cannot enter into an employment contract.

Trial workWhen concluding an employment contract, trial work period may be

agreed upon. Trial work period may not exceed six months. Iftrial work period is agreed upon, the termination periodshould last for at least seven days. Not meeting expectationsof the trial work is an especially justified reason for thecancellation of the employment contract.

non-compete clause, A non-compete clause (often NCC), or covenant not to compete

(CNC), is a term used in contract law under which one party(usually an employee) agrees not to enter into or start asimilar profession or trade in competition against anotherparty (usually the employer). As a contract provision, a CNCis bound by traditional contract requirements including theconsideration doctrine. The use of such clauses is premised onthe possibility that upon their termination or resignation, anemployee might begin working for a competitor or starting abusiness, and gain competitive advantage by exploitingconfidential information about their former employer'soperations or trade secrets, or sensitive information such ascustomer/client lists, business practices, upcoming products,and marketing plans.

Mandatory clauses/ Employment contract provisionsFor an individual employment agreement to meet the minimum

requirements, it must contain at least the clauses listedbelow.

The individual employment agreement must include:¯ parties and their residence or headquarters;¯ place of work, or if there is no permanent or principal place of work, remark

that the work is carried out at various places,¯ job title or the nature or type of work for which the employee is employed or

a short list or a job description,¯ date of commencement of work,¯ expected duration of the contract, in cases of an employment for a definite

time,


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Labour Law Handbook (By Ojijo)¯ duration of the paid annual leave to which the employee is entitled, or,

where such information cannot be given at the time of the contractconclusion or issuance of a confirmation, the way in which the duration ofthis leave will be determined,

¯ termination notice periods to be observed by the employee and the employer,or where such information cannot be given at the time of the conclusion ofthe contract or the issuance of a confirmation, the method for determiningtermination notice periods,

¯ basic salary, salary supplements and payment of earnings to which theemployee is entitled,

¯ duration of a regular work-day or week.¯ The names of the employer and the employee (to make clear who are the

parties to the agreement).¯ A description of the work to be performed (to make clear what the employee

is expected to do).¯ An indication of the place and hours of work.¯ The wage rate or salary payable.¯ A plain explanation of services available to help resolve employment

relationship problems.¯ A provision confirming the right to at least time-and-a-half payment for

working on a public holiday.¯ For most employees, an employment protection provision that will apply even

if the employer’s business is sold or transferred, or if the employee’s work iscontracted out.

¯ A reference to the fact that personal grievances must be lodged within 90days of any incidents occurring.

restrictive covenant A restrictive covenant is typically clause in a contract which

prohibits an employee from competing with his ex-employer fora certain period after the employee has left the business, orprevents the ex-employee from soliciting or dealing withcustomers of the business by using knowledge of thosecustomers gained during his prior employment.

The starting point for any such post-termination restriction isthat it is void on the grounds that it is a restraint of tradeand contrary to public policy. It follows that an employer isgenerally not entitled to protect himself against competitionfrom his ex-employees. However, if the ex-employer canconvince a court that the covenant is:


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Labour Law Handbook (By Ojijo)¯ designed to protect his legitimate business interests; and¯ that it extends no further than is reasonably necessary to protect those interests

then it will be upheld and enforced.

A non-compete clause may be enforced to protect a legitimatebusiness interest – for example, client connections,confidential information or a stable workforce – and notsimply to stifle or prevent competition.

Types of restrictive covenants The standard types of restrictions which can be used by employers

are: ¯ non-competition covenants ¯ restrictions on the former employee working in similar employment for a

competitor;¯ non-solicitation covenants¯ which prevent poaching of clients/customers/suppliers of the former employer;¯ non-dealing covenants¯ which prevent a former employee from dealing with former

clients/customers/suppliers, regardless of which party approached the other;¯ non-poaching covenants ¯ which prevent an employee poaching former colleagues.

non-disclosure clause, non-disclosure agreement (NDA),confidentiality agreement (CA), confidential disclosureagreement (CDA),

A non-disclosure agreement (NDA), also known as a confidentialityagreement (CA), confidential disclosure agreement (CDA),proprietary information agreement (PIA), or secrecy agreement(SA), is a legal contract between at least two parties thatoutlines confidential material, knowledge, or information thatthe parties wish to share with one another for certainpurposes, but wish to restrict access to or by third parties.It is a contract through which the parties agree not todisclose information covered by the agreement. An NDA createsa confidential relationship between the parties to protect anytype of confidential and proprietary information or tradesecrets. As such, an NDA protects nonpublic businessinformation.

NDAs are commonly signed when two companies, individuals, orother entities (such as partnerships, societies, etc.) are


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Labour Law Handbook (By Ojijo)considering doing business and need to understand theprocesses used in each other's business for the purpose ofevaluating the potential business relationship. NDAs can be"mutual", meaning both parties are restricted in their use ofthe materials provided, or they can restrict the use ofmaterial by a single party.

Unilateral NDAA unilateral, or a one-way, agreement is where one party wants to

disclose certain information to another party but needs theinformation to remain secret for some reason, perhaps due tosecrecy requirements required to satisfy patent laws or tomake sure that the other party does not take and use thedisclosed information without compensating the discloser.

Bilateral NDAA bilateral, or mutual, agreement is where both parties will be

supplying information that is intended to remain secret. Thistype of agreement is common when businesses are consideringsome kind of joint venture or merger.

Some practitioners insist on a mutual NDA in all cases, toencourage the drafter to make the provisions "fair andbalanced" in case the drafter's receiving-party client laterends up as a disclosing party, or vice versa (not an uncommonoccurrence).

separation and severance agreementsMost managers dread the thought of terminating an employee. When

the decision is made that a company and an employee must goseparate ways, then a Separation Agreement is advisable. Itacts as a "written handshake" between the two parties, and canprevent misunderstandings down the line. The typical scenariofor a Separation Agreement involves an involuntary terminationwhere the company is willing to pay some form of severancecompensation to the employee. In these cases, a SeparationAgreement is recommended but not required. Labour law onlyrequires pay through the last day of work, as well as pay forany accrued vacation. However, further commitments by thecompany to provide severance pay may be found in a companyseverance policy or in an individual employee's employment


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Labour Law Handbook (By Ojijo)contract. In these limited cases, the severance pay must bepaid. In other cases, severance payments are optional.


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TERMINATION OF EMPLOYMENT

Involuntary termination of employmentInvoluntary termination is an employee's departure from a job at

the hands of the employer. It's colloqually called beingfired. There are two basic types of involuntary termination,known often as being "sacked" and "laid off." To be sacked, asopposed to being laid off, is generally thought of to be theemployee's fault, and therefore is considered in most cases tobe dishonourable and a sign of failure (compare dishonourabledischarge).

Often, it may hinder the jobseeker's chances of finding newemployment, particularly if he/she has been sacked fromprevious jobs. Jobseekers sometimes do not mention jobs fromwhich they were sacked on their résumés; accordingly,unexplained gaps in employment, and refusal to contactprevious employers are often regarded as "red flags". Beingsuccessively fired from several jobs has the possibility ofpreventing jobseekers from obtaining gainful employment for along time.[better source needed]

DismissalDismissal is where the employer chooses to require the employee

to leave, generally for a reason which is the fault of theemployee. The most common colloquial term for dismissal inAmerica is "getting fired" whereas in Britain the term"getting the sack" or "getting sacked" is also used.

LayoffA less severe form of involuntary termination is often referred

to as a layoff (also redundancy or being made redundant inBritish English). A layoff is usually not strictly related topersonal performance, but instead due to economic cycles orthe company's need to restructure itself, the firm itselfgoing out of business or a change in the function of theemployer (for example, a certain type of product or service isno longer offered by the company and therefore jobs related tothat product or service are no longer needed). One type oflayoff is the aggressive layoff; in such a situation, theemployee is laid off, but not replaced as the job iseliminated.


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Labour Law Handbook (By Ojijo)Termination by mutual agreementThis section is missing information about voluntary termination

or quitting. Please expand the section to include thisinformation. F

Some terminations occur as a result of mutual agreement betweenthe employer and employee. When this happens, it is sometimesdebatable if the termination was truly mutual. In many ofthese cases, it was originally the employer's wish for theemployee to depart, but the employer offered the mutualtermination agreement in order to soften the firing (as in aforced resignation). But there are also times when atermination date is agreed upon before the employment starts(as in an employment contract).

Some types of termination by mutual agreement include:The end of an employment contract for a specified period of time

(such as an internship)Mandatory retirement. Some occupations, such as commercial airline pilots, face

mandatory retirement at a certain age.Forced resignationChanges of conditionsFirms that wish for an employee to exit of his or her own accord

but do not wish to pursue firing or forced resignation, maydegrade the employee's working conditions, hoping that he orshe will leave "voluntarily".

The employee may be moved to a different geographical location,assigned to an undesirable shift, given too few hours if parttime, demoted (or relegated to a menial task), or assigned towork in uncomfortable conditions. Other forms of manipulationmay be used, such as being unfairly hostile to the employee,and punishing him or her for things that are deliberatelyoverlooked with other employees.

Often, these tactics are done so that the employer won't have tofill out termination papers in jurisdictions without at-willemployment. In addition, with a few exceptions, employees whovoluntarily leave generally cannot collect unemploymentbenefits.


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Labour Law Handbook (By Ojijo)Such tactics may amount to constructive dismissal, which is

illegal in some jurisdictions.Rehire following termination Depending on the circumstances, one whose employment has been

terminated may or may not be able to be rehired by the sameemployer.

If the decision to terminate was the employee's, the willingnessof the employer to rehire is often contingent upon therelationship the employee had with the employer, the amount ofnotice given by the employee prior to departure, and the needsof the employer. In some cases, when an employee departed ongood terms, s/he may be given special priority by the employerwhen seeking rehire.

An employee who was fired by an employer may in some cases beeligible for rehire by that same employer, although in somecases it is usually related to staffing issues.

Employment can be terminated without prejudice, meaning the firedemployee may be rehired readily for the same or a similar jobin the future. This is usually true in the case of layoff.

Conversely, a person's employment can be terminated withprejudice, meaning an employer will not rehire the formeremployee to a similar job in the future. This can be for manyreasons: incompetence, misconduct (such as dishonesty or "zerotolerance" violations), insubordination or "attitude"(personality clashes with peers or bosses).

Termination forms ("pink slips") routinely include a set of checkboxes where a supervisor can indicate "with prejudice" or"without prejudice".

For example, public school teachers in New York who are laid offare placed on a Preferred Eligible List for employment in theschool district where they were laid off for seven years fromthe date of layoff. If a teacher who was laid off applies tofill a job opening, he or she is given priority over otherapplicants.

Constructive DismissalA constructive dismissal may occur when an employer makes a

significant change to a fundamental term or condition of an


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Labour Law Handbook (By Ojijo)employee's employment without the employee's actual or impliedconsent.

For example, an employee may be constructively dismissed if theemployer makes changes to the employee's terms and conditionsof employment that result in a significant reduction in salaryor a significant negative change in such things as theemployee's work location, hours of work, authority, orposition. Constructive dismissal may also include situationswhere an employer harasses or abuses an employee, or anemployer gives an employee an ultimatum to "quit or be fired"and the employee resigns in response.

The employee would have to resign in response to the changewithin a reasonable period of time in order for the employer'sactions to be considered a termination of employment forpurposes of the ESA.

Temporary LayoffAn employee is on temporary layoff when an employer cuts back or

stops the employee’s work without ending his or her employment(e.g., laying someone off at times when there is not enoughwork to do). The mere fact that the employer does not specifya recall date when laying the employee off does notnecessarily mean that the lay-off is not temporary. Note,however, that a lay-off, even if intended to be temporary, mayresult in constructive dismissal if it is not allowed by theemployment contract.

For the purposes of the termination provisions of the ESA, a"week of layoff" is a week in which the employee earned lessthan half of what he or she would ordinarily earn (or earns onaverage) in a week.

A week of layoff does not include any week in which the employeedid not work for one or more days because the employee was notable or available to work, was subject to disciplinarysuspension, or was not provided with work because of a strikeor lockout at his or her place of employment or elsewhere.

Employers are not required under the ESA to provide employeeswith a written notice of a temporary layoff, nor do they haveto provide a reason for the lay-off. (They may, however, be


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Labour Law Handbook (By Ojijo)required to do these things under a collective agreement or anemployment contract.)

Written Notice of TerminationAn employee is entitled to notice of termination (or termination

pay instead of notice) if he or she has been continuouslyemployed for at least three months. A person is considered“employed” not only while he or she is actively working, butalso during any time in which he or she is not working but theemployment relationship still exists (for example, time inwhich the employee is off sick or on leave or on lay-off).

The amount of notice to which an employee is entitled depends onhis or her “period of employment”. An employee’s period ofemployment includes not only all time while the employee isactively working but also any time that he or she is notworking but the employment relationship still exists, with thefollowing exceptions:

¯ if a lay-off goes on longer than a temporary lay-off, the employee’s employment isdeemed to have been terminated on the first day of the lay-off—any time after thatdoes not count as part of the employee’s period of employment, even though theemployee might still be employed for purposes of the “continuously employed forthree months” qualification;

¯ if two separate periods of employment are separated by more than 13 weeks, onlythe most recent period counts for purposes of notice of termination. It is possible, insome circumstances, for a person to have been “continuously employed” for threemonths or more and yet have a period of employment of less than three months. Insuch circumstances, the employee would be entitled to notice because an employeewho has been continuously employed for at least three months is entitled to notice,and the minimum notice entitlement of one week applies to an employee with aperiod of employment of any length less than one year.

Requirements During the Statutory Notice PeriodDuring the statutory notice period, an employer must:¯ not reduce the employee's wage rate or alter any other term or condition of

employment;¯ continue to make whatever contributions would be required to maintain the

employee's benefits plans; and¯ pay the employee the wages he or she is entitled to, which cannot be less than the

employee's regular wages for a regular work week each week.

Regular Rate


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Labour Law Handbook (By Ojijo)This is an employee's rate of pay for each non-overtime hour of

work in the employee's work week.Regular WagesThese are wages other than overtime pay, vacation pay, public

holiday pay, premium pay, termination pay and severance payand certain contractual entitlements.

Regular Work WeekFor an employee who usually works the same number of hours every

week, a regular work week is a week of that many hours, notincluding overtime hours.

Termination PayAn employee who does not receive the written notice required

under the ESA must be given termination pay in lieu of notice.Termination pay is a lump sum payment equal to the regularwages for a regular work week that an employee would otherwisehave been entitled to during the written notice period. Anemployee earns vacation pay on his or her termination pay.Employers must also continue to make whatever contributionswould be required to maintain the benefits the employee wouldhave been entitled to had he or she continued to be employedthrough the notice period.

Mass TerminationSpecial rules for notice of termination may apply when the

employment of 50 or more employees is terminated at anemployer's establishment within a four-week period. This isoften referred to as mass termination. (Note: an"establishment" can, in some circumstances, include more thanone location.)

Temporary Work After Termination Date in NoticeAn employer can provide work to an employee who has been given

notice of termination on a temporary basis in the 13-weekperiod after the termination date set out in the noticewithout affecting the original date of the termination andwithout being required to provide any further notice oftermination to the employee when the temporary work ends.

If an employee works beyond the 13-week period after thetermination date and then has his or her employment


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Labour Law Handbook (By Ojijo)terminated, the employee will be entitled to a new writtennotice of termination as if the previous notice had never beengiven. The employee’s period of employment will then alsoinclude the period of temporary work

Recall RightsA "recall right" is the right of an employee on a layoff to be

called back to work by his or her employer under a term orcondition of employment. This right is commonly found incollective agreements.

An employee who has recall rights and who is entitled totermination pay because of a layoff of 35 weeks or more maychoose to:

¯ keep his or her recall rights and not be paid termination pay (or severance pay, if heor she was entitled to severance pay) at that time;

or

¯ give up his or her recall rights and receive termination pay (and severance pay, if heor she was entitled to severance pay).

If an employee is entitled to both termination pay and severancepay, he or she must make the same choice for both.

unfair dismissalUnfair dismissal is a term in labour law to describe an act of

employment termination without good reason, or contrary to thecountry's specific legislation.

harsh, unjust or unreasonable In considering whether a dismissal was harsh, unjust or

unreasonable, the Fair Work Commission must take into accountall of the following factors:

¯ whether there was a valid reason for the dismissal related to the employee’scapacity or conduct

¯ whether the employee was notified of that reason and given an opportunity torespond

¯ any unreasonable refusal by the employer to allow the employee to have a supportperson present to assist at any discussions relating to dismissal

¯ if the dismissal related to unsatisfactory performance by the employee, whether theyhad been warned about that unsatisfactory performance before the dismissal


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Labour Law Handbook (By Ojijo)¯ the degree to which the size of the employer’s enterprise and the degree to which the

absence of dedicated human resource management specialists or expertise wouldbe likely to impact on the procedures followed in effecting the dismissal

¯ any other matters that the Fair Work Commission considers relevant.

wrongful dismissal Wrongful dismissal, also called wrongful termination or wrongful

discharge, is an idiom and legal phrase, describing asituation in which an employee's contract of employment hasbeen terminated by the employer in circumstances where thetermination breaches one or more terms of the contract ofemployment, or a statute provision in employment law. Itfollows that the scope for wrongful dismissal varies accordingto the terms of the employment contract, and varies byjurisdiction. Note that the absence of a formal contract ofemployment does not preclude wrongful dismissal injurisdictions in which a de facto contract is taken to existby virtue of the employment relationship. Terms of such acontract may include obligations and rights outlined in anemployee handbook.

Summary DismissalsIt is fair for a small business employer to dismiss an employee

without notice or warning when the employer has reasonablegrounds to believe that the employee was guilty of seriousmisconduct. Serious misconduct includes theft, fraud, violenceand serious breaches of occupational health and safetyprocedures. For a dismissal to be deemed fair, it issufficient, though not essential, that an allegation of theft,fraud or violence be reported to the police.

Other DismissalsIn other dismissals, a small business employer must give the

employee a valid reason based on their capacity or conduct todo the job if they are at risk of being dismissed. Theemployee must be warned verbally (or preferably in writing),that they risk being dismissed if there is no improvement.Further, the employer must provide the employee with anopportunity to respond to the warning and give them areasonable chance to rectify the problem, having regard to theemployee’s response. Rectifying the problem might involve the


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Labour Law Handbook (By Ojijo)employer providing additional training and ensuring theemployee knows the employer’s job expectations.

Procedural mattersEmployees can have another person present to assist them in

discussions in circumstances where dismissal is possible.However, the other person cannot be a lawyer acting in aprofessional capacity.

If the employee makes an unfair dismissal claim to the Fair WorkCommission, the small business employer will be required toprovide evidence of compliance with the Code. This evidencemay include that a warning has been given (except in cases ofsummary dismissal), a completed checklist, copies of writtenwarning(s), a statement of termination or signed witnessstatements.

retrenchmentRetrenchment (French: retrenchment, an old form of retranchement,

from retrancher, to cut down, cut short) is an act of cuttingdown or reduction, particularly of public expenditure.

last to come first to go principle, or last in first out (lifo)principle

It is a “rule of thumb” rather than a legal regulation, and isusually followed by the words: “all things being equal”. Themost obvious reason is that companies owe a greater measure ofloyalty to longer-serving employees that have worked for thecompany’s interests for a longer time. Those employees tend tobe more experienced and have a greater knowledge ofinstitutional history and culture and should therefore be morevaluable as employees. You will notice I said: “tend to” sincelonger-serving employees can also be less productive, lessdisciplined and less valuable than more recent hires. The “allthings being equal” assumes equal value, equal discipline, andequal productivity.”

The second reason is the cost of severance pay. Since severancepay must, by law, be paid to retrenched employees, and it iscalculated according to length of service, retrenching long-serving employees is very expensive.

Howver, it must be noted that LIFO is not an absolute rule (it isnot a statutory provision) which cannot be departed from by an Lawpronto Training Manuals

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Labour Law Handbook (By Ojijo)employer when retrenching staff. That the employer is notdenied the freedom to depart from the LIFO principle is madeobvious.

redundancyRedundancy occurs when an employer decides they no longer want a

job an employee has been doing to be done by anyone, andterminates their employment (except in cases of ordinary andcustomary turnover of labour). The job itself, not theemployee, becomes redundant.

Redundancy may happen when an employee is terminated because:

¯ the job someone has been doing is replaced due to the employer introducing newtechnology (i.e. it can be done by a machine)

¯ staff reduction for a particular task occurs due to a downturn in business¯ a merger or takeover happens and the position is no longer required¯ the business restructures or reorganises and the position is no longer required (this

may include where tasks performed by a particular employee are distributedbetween several other employees)

¯ of the insolvency or bankruptcy of the employer.

Where a case is a genuine redundancy, it will not be consideredan unfair dismissal.

severanceDismissal or discharge from employment.severance package A severance package is pay and benefits an employee receives when

he or she leaves employment at a company. In addition to theemployee's remaining regular pay, it may include some of thefollowing:

¯ An additional payment based on months of service¯ Payment for unused vacation time or sick leave.¯ A payment in lieu of a required notice period.¯ Medical, dental or life insurance¯ Retirement (e.g., 401K) benefits¯ Stock options¯ Assistance in searching for new work, such as access to employment services or help

in producing a résumé.


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Labour Law Handbook (By Ojijo)Packages are most typically offered for employees who are laid

off or retire. Severance pay was instituted to help protectthe newly unemployed. Sometimes, they may be offered forpeople who resign, regardless of the circumstances; or arefired. Policies for severance packages are often found in acompany's employee handbook, and in many countries are subjectto strict government regulation. Severance contracts oftenstipulate that the employee will not sue the employer forwrongful dismissal or attempt to collect on unemploymentbenefits, and that if the employee does so, then they mustreturn the severance money.

gratuityGratuity is a lump sum payment made to the employees based on the

duration of their total service. The gratuity benefit ispayable on cessation of employment (either by resignation,death, retirement or termination, etc) by taking the lastdrawn salary as the basis for the calculation. However, incase of death of the employee, his/her family members aregiven the amount. It is a form of gratitude provided to theemployees in monetary terms for the services rendered by themto the organisation and is an important form of socialsecurity benefit. Gratuity payment liability of the employertends to increase with a increase in the salary and tenure ofemployment. The employer may pay the gratuity proceeds fromhis current revenue. Some organisations have also set up agratuity fund as a part of their financial planning. Also,many insurance companies have designed special schemes whichrelate to gratuity.

right to workThe employee is always entitled to be paid during his employment

and the required notice period. He is often also entitled towork, so requiring him to spend the time in leisure to get himout the way can be a breach, even though it may be usuallyconsidered a benefit. If an employer wants an exitingemployee out of the way and does not have the right to put himon garden leave or pay him in lieu of notice then the onlyoptions are to encourage use of holiday and offer a compromiseagreement to waive his right to sue in return for theintentional breach of contract. Sometimes the breach turns the


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Labour Law Handbook (By Ojijo)termination payment into compensation rather than wages,making it tax-free, so the employee may be only too happy togo along with the ruse.

actual dismissalA dismissal usually takes the form of an actual dismissal whereby

the employment relationship is terminated by the employer.constructive dismissalA wrongful dismissal can be actual or constructive, but a

constructive dismissal is almost certain to be a wrongfuldismissal since the correct notice will not have been given ifthe dismissal was caused by a resignation itself caused by theemployer's serious breach of contract. An employee who wasconstructively dismissed, as well as possibly having a claimfor breach of the duty not to destroy the bond of mutualtrust, will usually have a claim for wrongful dismissal. Asonly economic loss can be claimed for breach of contract, themain loss will be earnings due to the lost notice period asopposed to any disgruntlement about the manner or reason fordismissal, so the constructive nature of the dismissal tendsto disappear into the claim for lost notice period.

meritocracyThere is some overlap among these different conceptions with the

term meritocracy which describes an administrative systemwhich rewards such factors as individual intelligence,credentials, education, morality, knowledge or other criteriabelieved to confer merit. Equality of opportunity is often seenas a major aspect of a meritocracy.58 One view was thatequality of opportunity was more focused on what happens beforethe race begins, while meritocracy is more focused on fairnessat the competition stage.59

58 Laura, Laubeová (2000). ‘Encyclopedia of The World’s Minorities’. FitzroyDearborn Publishers. Retrieved 2011-09-12. ‘This complex and contested concept...’

59 Ricardo Paes de Barros. Francisco H. G. Ferreira, Jose R. Molinas Vega,and Jaime Saavedra Chanduvi (2009). ‘Measuring inequality of opportunityin Latin America and the Caribbean’. Palgrave Macmillan and the World Bank. ISBN 978-0-8213-7745-1. Retrieved 2011-09-08. ‘(page 32 Box 1.1)’


http://en.wikipedia.org/wiki/Special:BookSources/978-0-8213-7745-1


http://books.google.com/books?id=ABHXr54-XXUC&pg=PA32&dq=%22equality+of+opportunity%22&hl=en&ei=QBxqTqTfLeLv0gG27byuCQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCkQ6AEwADge#v=onepage&q=%22equality%20of%20opportunity%22&f=false

http://books.google.com/books?id=ABHXr54-XXUC&pg=PA32&dq=%22equality+of+opportunity%22&hl=en&ei=QBxqTqTfLeLv0gG27byuCQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCkQ6AEwADge#v=onepage&q=%22equality%20of%20opportunity%22&f=false

http://instituty.fsv.cuni.cz/~laubeova/anglicky/research/encyclopedia/equal.htm

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Labour Law Handbook (By Ojijo)primary boycott A primary boycott occurs when a union or other political or

community organization encourages both its members and thegeneral public not to buy the products of a firm involved in alabor or political dispute.

Primary boycotts generally occur during labor negotiations andare a way for a union to either get management to thenegotiating table or to help the union press for its demands.Success involving primary boycotts is mixed.

secondary action Secondary action (also known as a secondary boycott or sympathy

strike) is industrial action by a trade union in support of astrike initiated by workers in another, separate enterprise.The term ‘secondary action’ is intended to be distinct from atrade dispute with a worker's direct employer, and so may beused to refer to a dispute with the employer's parent company,its suppliers, financiers, contracting parties, or any otheremployer in another industry.

In most countries there are limits on the purpose for whichpeople can go on strike, and in many English speaking nationsrestrictions have been placed on which organisations tradeunions may strike against. In US and UK workers can typicallystrike against their direct employer only. In continentalEurope, secondary action is generally lawful and the right tostrike is seen as a part of broader political freedom.

contract of employmentA contract of employment is a category of contractor used in

labour law to attribute right and responsibilities betweenparties to a bargain. On the one end stands an ‘employee’ whois ‘employed’ by an ‘employer’.60 It has arisen out of the oldmaster-servant law, used before the 20th Century. Putgenerally, the contract of employment denotes a relationship

60 Sir John MacDonell, Classification of Forms and Contracts of Labour (1904) Journal of the Society of Comparative Legislation, New Series, Vol. 5, No. 2, pp. 253-261, at 255-256


109

Labour Law Handbook (By Ojijo)of economic dependence and social subordination61. In the wordsof the influential labour lawyer Sir Otto Kahn-Freund,

‘the relation between an employer and an isolated employee orworker is typically a relation between a bearer of power andone who is not a bearer of power. In its inception it is anact of submission, in its operation it is a condition ofsubordination, however much the submission and thesubordination may be concealed by the indispensable figment ofthe legal mind known as the 'contract of employment'. The mainobject of labour law has been, and... will always be acountervailing force to counteract the inequality ofbargaining power which is inherent and must be inherent in theemployment relationship.’62

continuous bargaining Continuous bargaining is a method of collective bargaining which

retains a permanent, rolling negotiation between managementand a permanent committee of union representatives.

61 Mark Freedland, The Personal Employment Contract (2003) Oxford University Press, ISBN 0-19-924926-1

62 Labour and the Law, Hamlyn Lectures, 1972, 7


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EMPLOYEE MISCONDUCT, DISMISSAL AND APPEAL

MisconductAn employer may, after an inquiry, terminate an employee's

services without notice if the employee is found guilty ofmisconduct by failing to fulfil the expressed or impliedconditions of employment.

Inquiry to follow the rules of natural justice: no man shall be a judge in his own cause no man shall be condemned unheardMisconduct refers to a breach of duty or discipline which is

inconsistent with the express or implied conditions of anemployee's contract of service. Examples of misconduct aretheft or dishonesty, disorderly or immoral conduct at work,willful insubordination etc.

If the employee has committed an act of misconduct, the employershould conduct an inquiry before deciding whether to dismissthe employee or to take other forms of disciplinary action.

Procedures of an inquiryThe employer must hold an inquiry into the misconduct. If, after

the inquiry, the employee is found guilty of the misconduct,the employer may:

a. terminate the employee's service without notice; orb. instantly downgrade the employee; orc. instantly suspend him from work without payment of salary for

a period not exceeding one week.There is no prescribed procedure for conducting an inquiry into

an act of misconduct. As a general guideline,1. the person hearing the inquiry should not be in a position

which may suggest bias; and2. the employee being investigated for misconduct should have the

opportunity to present his case.Under the Employment Act, the employer may suspend the employee

from work during an inquiry, for a period not exceeding one


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Labour Law Handbook (By Ojijo)week. The employee should be paid not less than half hissalary for the suspended period.

If the inquiry does not disclose any misconduct on the part ofthe employee, the employer must restore to the employee thefull amount of salary that was withheld.

AppealsEmployees who feel that they have been unfairly dismissed* by

their employers may appeal to the Minister for Manpower to bereinstated to their former employment. Managers andexecutives earning basic monthly salaries of not more than$4,500 who are dismissed with the necessary notice or salary-in-lieu of notice must have at least 12 months of service withthe same employer before they can seek redress.

Appeals must be made in writing within one month of dismissal.

If the employer has given notice and the contractual terms oftermination are complied with, the onus would be on theemployees to show proof that the dismissal is unfair. TheMinistry of Manpower will continue to be stringent inassessing such appeals.

If it can be established that an employee was unfairlydismissed, the Minister may consider reinstating the employeein his former employment or ordering a sum of money ascompensation, as the Minister deems fit.

Dismissal

Dismissal means termination of the contract of service of anemployee by his employer, with or without notice and whetheron grounds of misconduct or otherwise.

Termination of Contract with NoticeThe party who intends to terminate the contract must give notice

to the other party in writing.

The notice period to be given depends on what is agreed in thewritten contract. If there is no written contract, the noticeperiod to be given depends on what the parties have agreed


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Labour Law Handbook (By Ojijo)upon verbally.

If there is no such period previously agreed upon, thefollowing shall apply:

Length of Service Notice PeriodLess than 26 weeks 1 day26 weeks to less than 2 years 1 week2 years to less than 5 years 2 weeks5 years and above 4 weeksThe day on which the notice is given shall be included in the

notice period.

The length of notice to be given by an employee (in aresignation) and an employer (in a termination of employment)are the same.

By mutual consent, notice can be waived.Taking of annual leave during notice periodAs the notice period is meant to be served, the employer cannot

force his employee to go on leave during the period of notice,unless the employee consents to it. Any unconsumed annualleave can be encashed by the employee.

Offsetting of annual leaveAn employee can use his annual leave to offset the notice period

for termination of contract. If an employee uses his annualleave to offset his notice period and to bring forward hislast day of work, he would only be paid till his last day ofwork and the annual leave used to offset his leave will not bepaid. By bringing forward his last day of employment with thecompany, he is no longer considered an employee of the companyand hence he may start work immediately with his new company.

If an employee chooses to offset his leave during the noticeperiod, it is different from situation where he applies to goon approved leave during the notice period.

If an employee applies for annual leave to cover all or part ofhis notice period and approval has been granted by the


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Labour Law Handbook (By Ojijo)employer, he will be paid his salary for the full noticeperiod. In this case, he is considered as an employee of thecompany until the last day of his notice period. If he wantsto join a new company, he can do so only after the last day ofhis notice period.

Taking sick leave during notice periodIf the employee was on sick leave (whether paid or unpaid) during

the notice period, the sick leave taken should be treated aspart of the notice period. The employer cannot claim for anyshort notice from the employee.

Starting work with new employer while serving notice oftermination with current employer

The employee serving the notice of termination is stillconsidered an employee of his current employer. Unless hiscurrent contract of employment allows him to work with anotheremployer before the date of termination, he has to seekwritten permission from his current employer to do so.

Using reservist period as notice of terminationAs the notice period is meant to be served, the reservist

training cannot be used to offset the notice period. However,both parties may mutually agree to waive the required notice.

Salary-in-lieu of notice (Notice Pay)Salary-in-lieu of notice does not attract CPF contribution.

However if an employee has fully served the required noticeperiod, his salary for the notice period will be subjected toCPF. CPF contributions must be made by both the employer andemployee for the salary earned if the employee was workingduring the notice period, or considered as an employee of thecompany and hence prohibited to join another company duringthe notice period.

Termination of contract without noticeBoth employer and employee may terminate a contract of service

without waiting for the required notice period to expire, bypaying the other party a sum equal to the salary that wouldhave been earned by the employee during the required period ofnotice.


114

Labour Law Handbook (By Ojijo)An employee may terminate an employment relationship without

giving notice to the other party, if: The employer fails to pay his/her salary within seven days

after salary is due; or He/she is called upon to do work that is not within the terms

of the contract of service.An employer may terminate an employment relationship without

giving notice to the other party, if: The employee is absent from work continuously for more than

two working days, without approval or good excuse; The employee is absent from work continuously for more than

two working days without informing or attempting to inform theemployer of the reason for absence. The party that breaks thecontract will have to pay to the other party salary in-lieu ofnotice.

Changes to employee's terms and conditions of workEmployers cannot change the terms and conditions of employment,

unless his employee agrees to it. If the employee does notagree to the changes, he should bring up the matter to hisemployer and try to negotiate for an acceptable agreement toboth parties. If there is no agreement to the dispute, eitherparty may choose to end the employment relationship by servingthe appropriate notice to the other party.

Rejection of employee's resignationAn employer cannot reject an employee's resignation. The employee

has the right to resign at any time by serving the requirednotice or by compensating the employer salary in-lieu ofnotice. Failure of the employer to allow an employee to leavehis service is an offence. The employer shall be liable onconviction to a fine not exceeding $5,000 or to imprisonmentfor a term not exceeding six months or to both.

Compensation from employees for terminating a contractContracts that require employees to pay a monetary compensation

(in addition to notice pay) to the employer for terminatingthe contract before the completion of a specified period arenot covered by the Employment Act. An employee can resign at


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Labour Law Handbook (By Ojijo)any time by serving the required notice in accordance with theprovisions in the employment contract.

The terms pertaining to monetary compensation (in addition to thenotice pay) for terminating the contract prematurely is acontractual term and not governed by the Employment Act. Wherethere are disputes, the civil court will have jurisdiction indeciding the outcome.


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CONTRACT FOR SERVICES

independent contractor agreements Independent Contractor Agreement governs the relationship between

a company and an independent contractor. Some provisions mayneed to be altered in accordance with local law.

contract for services A contract for services, however, is an agreement whereby a

person is engaged as an independent contractor, such as aself-employed person or vendor engaged for a fee to carry outan assignment or a project for the company. Under such a workarrangement, there is no employer-employee relationship, andthe employee is not covered by the Employment Act.

There is no single conclusive test to distinguish a contract ofemployment from a contract for services. Some of the factorsto be considered in identifying a contract of employmentinclude:

Control (contract for services)

Who decides on the recruitment and dismissal of employees?Who pays for the employees' wages and in what ways?Who determines the production process, timing and method of

production?Who is responsible for the provision of work?

Ownership of factors of production(contract for services)

Who provides the tools and equipment?Who provides the working place and materials?

Economic considerations(contract for services)

Does he carry on business on his own account or carry on thebusiness for the employer?


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Labour Law Handbook (By Ojijo)Does he involve in any prospect of profit or is he liable to any

risk of loss?How are his earnings calculated and profits derived?CONTRACT FOR EMPLOYMENT PROVISIONS

AssignmentEnglish law states that, in the absence of express drafting to

the contrary in a contract, either party to that contract may:1. Assign their rights to a third party (subject to limited

exceptions); but2. May not transfer obligations arising under that contract to a

third party.This 'default' legal position exposes the parties to the

undesirable reality that a contract they have entered into canbe freely assigned to a third party without their consent.Particularly in services contracts this is far from ideal asit could expose the service provider to the situation where athird party of which they have no knowledge (including itsability to pay) is utilising its services under a contract.

It is therefore common to see the inclusion of the followingclause, or some variation on it:

Neither party may without the prior written consent of the other, such consent not to beunreasonably withheld, assign or in any way dispose of its rights under thisagreement to any third party.

Such drafting is neutral and protects both parties from theeventuality discussed above. However, it would not be unusualto see a one way obligation to seek consent to assign, if theparty seeking to impose that obligation on the other party hasconcerns as to who might end up providing it with services orproducts.

Boilerplate'Boilerplate' describes provisions which are common to most

commercial contracts and which do not relate to the mainobject of the contract but which are required for regulate itsoperation. Although such clauses are often considered'standard', their ramifications are far from so, and careful


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Labour Law Handbook (By Ojijo)thought should always be given to the impact of the clause inthe specific commercial context of the contract.

ConfidentialityContracts will typically include a clause requiring the parties

to protect each other's confidential information. Theinclusion of such a confidentiality clause is imperative inthe situations where the parties' confidential informationwill be exposed to the other. The wording below is asimplified example of a confidentiality clause:

The parties shall keep confidential all Confidential Information and not, without theprior written consent of the other party, disclose the Confidential Information to anyother party save to the extent required by law.

The definition of 'Confidential Information' is often draftedwidely to include all written, pictorial, machine readable ororal information which relates to trade secrets, customers,suppliers, or business associations or information that isfinancial, technical or commercial in nature. It is vital thatthe definition of 'Confidential Information' satisfactorilycaptures the information particular to your business to ensureall such information remains confidential and protected fromdisclosure to third parties who could be potentialcompetitors.

Scope Of ServicesThe scope of services is a detailed description of those services

you will provide to the client, those you can provide for anadditional fee and those you will not provide. It should be asprecise and complete as possible. It should leave no ambiguityor question as to whether or not some duty or deliverable itemis included within your basic fee.

Certifications, Guarantees And WarrantiesYour contract should never promise to assure the total accuracy

of something (e.g., a subcontractor’s HVAC installation) orconfirm absolute compliance with a standard (e.g., ADAcompliance). WHY By certifying, guaranteeing or warrantingsomething, you are assuming a level of liability well beyondthe legally required standard of care. Your professionalliability insurance is not intended to cover breach ofcontract or warranty, the assumption of someone else’s


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Labour Law Handbook (By Ojijo)liability or a promise to perform to a standard of care higherthan legally required. The smallest error, whether caused byyou or someone else, could lead to a claim of breach ofwarranty.

Consequential DamagesYour contract should include a Waiver for Consequential Damages,

those indirect expenses (e.g., loss of profit) that areremotely connected to a design professional’s failure. Thisshould include a provision that makes it clear that neitheryou nor your client will be held responsible for consequentialdamages because of any alleged failures by either party.

Jobsite SafetyYour contract should include a Jobsite Safety provision that

makes clear that responsibility for site safety andconstruction means and methods remains with the contractor,not the design professional. Assuming any responsibility forsafety programs and safety procedures, either by contract orby your actions, can have serious economic consequences.

Billing And PaymentContract language should address issues such as when payment is

due, the penalties for late payment (e.g., interest,collection costs) and your rights in the event of non-payment(e.g., suspension or termination of services).

Dispute ResolutionIn the early stages of contract negotiation, dispute resolution

provisions are rarely given much consideration. Focus tendstowards level of payment, defining the scope of the service orproduct(s) to be provided, negotiating warranty and indemnityprovisions and payment mechanisms. However, it is important toensure that your contract contains suitable and appropriatewording dealing with disputes which may arise under thecontract to ensure clarity for all parties as to the preciseprocedure to be followed in the event of a dispute.

Frequently the parties will agree to an escalation procedure,whereby clear steps and processes are stipulated prior to thematter being referred to the courts. As a matter of principle,it is the duties of the parties to a contract to "help thecourt further the overriding objective" (Civil Procedure Rules Lawpronto Training Manuals

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Labour Law Handbook (By Ojijo)- Part 1 CPR 1.3). This "overriding objective" is to ensurethat all cases are dealt with justly and "to encourage theparties to cooperate with each other in the conduct ofproceedings" (CPR 1.4). In the light of these duties it isimportant that pre-court conduct also adheres to theseprinciples which in short encourages communication andcooperation between the parties.

Typically a notice setting out the dispute/ breach will be servedon the breaching party, giving them a specified period of timeto rectify the breach. In the event that the notice is notcomplied with, there will be a number of steps to be taken –for example the managing directors meeting to attempt toresolve the dispute/ an arbitrator is appointed to settle thedispute. Only after these steps have been followed will thenon-breaching party be able to take the dispute to court. Youshould always ensure that the escalation procedure and timeframes given are feasible in the circumstances.

Entire AgreementIt is common to see the following clause (or similar) inserted

into a contract:This agreement constitutes the entire agreement between the parties with respect to its

subject matter. It supersedes all previous agreements and understandings betweenthe parties and each party acknowledges that, in entering into this agreement, itdoes not do so on the basis of or in reliance upon any representations, promises,undertakings, warranties or other statements (whether written or oral) of any naturewhatsoever except as expressly provided in this agreement.

The purpose of such clause is as follows. Under English law, abasic principle is that outside evidence cannot be admitted tosupplement or vary a written contract (this is known as the'parol evidence' rule which was established in 1833). However,if it can be shown that the written contract was not intendedto capture the entire agreement between the parties, outsideevidence can be adduced to vary or supplement the contract.This exposes parties to the potential of unwritten non-contractual terms being added into the contract which is farfrom ideal.

The entire agreement clause is designed to exclude this exceptionand provide certainty to the parties that the writtenagreement they have signed has captured all terms agreed


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Labour Law Handbook (By Ojijo)between the parties. This clause is standard boilerplate, israrely reviewed and yet it commonly generates litigation. Inessence the clause is a statement which stipulates that thedocument contains the entire agreement and any precedingstatements, negotiations or representations, unlessencapsulated by the contract, are of no relevance and it isthe contract alone which can be relied upon. In short, if sucha clause is included in your contract, ensuring all agreedterms are encapsulated within the contract is vital as it isthis document alone that can be relied upon.

Force MajeureThe effect of a force majeure clause is to excuse the affected

party from performance under the contract as long as the forcemajeure event continues. It should be noted that there is nolegal definition of 'force majeure' and accordingly theprecise definition as provided for under the contract isimportant. The clause will typically provide for a time limitwhereby if the force majeure event continues, the contractwill terminate automatically with both parties being excusedfrom their liabilities under it. Examples of force majeureevents are fire, explosion, strikes, riots, terrorist activityand acts of God.

Recently the clause has been extended to include 'acts of naturewhich prohibit travel' to capture the recent disruptionscaused by volcanic ash. This serves as a reminder that forcemajeure clauses are not set in stone – so thought shouldalways be given to the potential risks the contract could beexposed to and drafted accordingly.

IndemnityIn the context of commercial contracts, an indemnity is an

undertaking (in other words a legally enforceable promise) tomeet a specific potential legal liability of another. Thepurpose of an indemnity is to provide a guaranteed remedy fora specified event. Indemnities are a highly negotiated pointin commercial contracts and consideration will have to begiven to the specific risk(s) arising under the commercialcontract and indemnities sought as required.


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Labour Law Handbook (By Ojijo)JurisdictionA commercial contract will stipulate which court will have

jurisdiction should any dispute arise which requiresresolution in the court system. In commercial contracts thereis often a foreign element involved and it is essential toensure the jurisdiction selected best suits the context from apractical perspective. Many European countries' judicialauthorities place much greater emphasis on written submissionsas opposed to the oral evidence favoured by the UK courts.Practical considerations might include the economics ofpursuing a case, the limitation periods under eachjurisdiction (which can range from 1-30 years) and researchinto the costs position (in some jurisdictions legal costs arenot recoverable from the losing party), as well of course asthe locations of the parties.

Liquidated DamagesA liquidated damages clause sets out the fixed sum (or

calculation of that sum) agreed by the parties that will bepayable on breach by either party. If the figure is deemed bythe courts to be punitive, the clause will be unenforceable socare should always be taken to ensure the clause includes anappropriate figure which reflects the contractual context andcould not be deemed to be punitive.

No Partnership, No AgencyContracts frequently contain boilerplate provisions stating that

the relationship between the parties is not to be construed asa partnership or agency. This is because both of those legalforms may arise implicitly, without the parties realising thatthey have done so, and both have a range of legal and taximplications for the parties. If the parties do not intend forthem to arise, it may be safer to state expressly that thecontract does not create either form of relationship, toensure that no unintended consequences flow from the contract.

Retention of titleRetention of title provisions are often hotly debated in

contractual negotiations. Where a supplier sells a product toits customer and is not paid immediately upon delivery, thenthe supplier will wish to provide that it retains title to (ie


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Labour Law Handbook (By Ojijo)ownership of) the products until payment is made. The supplierwill also want to impose various related obligations on thecustomer, covering issues such as how the products are stored,how they are identified as belonging to the supplier andwhether or not the customer may sell them on before title haspassed.

TerminationIt is common is most commercial contracts to see a termination

clause which enables the parties to terminate the contractprior to the expiry of the contract's stipulated term. Theclause sets out automatic triggers which enable immediatetermination of the contract or termination on notice. Theclause may provide that the position of both parties inrespect of termination is equal – thought should be given asto whether this is appropriate or desirable in each individualcase.

WaiverIn the absence of a waiver clause, where a party fails to take

action in respect of a breach or default under the agreement,or delays in taking action, that party may lose its rights totake action in respect of that breach of default. A waiverclause is designed to ensure that a party's rights, powers andremedies will not be lost as a result of any delay or omissionin exercising or enforcing them and to expressly provide thatany partial exercise/ enforcement of a party's rights orremedies shall not thereby extinguish or otherwise reducethose rights and remedies.

eXclusion of LiabilityAn exclusion clause's purpose is to exclude or restrict liability

and (where the contract is between businesses) will oftenexclude or restrict the party from pursuing a right or remedy(for example the right to reject goods where they are not ofsatisfactory quality).

Such exclusion clauses are subject to a 'reasonableness test'.What can and cannot be excluded will turn in the facts of eachcase but as a general rule it may be permissible to excludethe following if the clause satisfies the reasonableness test:


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Labour Law Handbook (By Ojijo) negligence (save where the negligence causes death or personal

injury); breach of the implied conditions of fitness for purpose or

correspondence with description or sample; breach of contract; or misrepresentation.It is important to remember that if an exclusion clause is found

to be unreasonable, it will be wholly unenforceable.


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COLLECTIVE BARGAINING

Collective bargaining Collective bargaining is a process of negotiations between

employers and a group of employees aimed at reachingagreements to regulate working conditions. The interests ofthe employees are commonly presented by representatives of atrade union to which the employees belong. The collectiveagreements reached by these negotiations usually set out wagescales, working hours, training, health and safety, overtime,grievance mechanisms, and rights to participate in workplaceor company affairs.63

The union may negotiate with a single employer (who is typicallyrepresenting a company's shareholders) or may negotiate with agroup of businesses, depending on the country, to reach anindustry wide agreement. A collective agreement functions as alabor contract between an employer and one or more unions.Collective bargaining consists of the process of negotiationbetween representatives of a union and employers (generallyrepresented by management, in some countries such as Austria,Sweden and the Netherlands by an employers' organization) inrespect of the terms and conditions of employment ofemployees, such as wages, hours of work, working conditions,grievance-procedures, and about the rights andresponsibilities of trade unions. The parties often refer tothe result of the negotiation as a collective bargainingagreement (CBA) or as a collective employment agreement (CEA).

International protection of collective bargaining...where free unions and collective bargaining are forbidden, freedom is lost.64

Ronald Reagan, Labor Day Speech at Liberty State Park, 1980The right to collectively bargain is recognized through

international human rights conventions. Article 23 of theUniversal Declaration of Human Rights identifies the abilityto organize trade unions as a fundamental human right. Item63 Buidens, Wayne, and others. "Collective Gaining: A Bargaining

Alternative." Phi Delta Kappan 63 (1981): 244-245.64 Namit, Chuck; and Larry Swift. "Prescription for Labor Pains: Combine

Bargaining with Problem Solving." The American School Board Journal 174 (1987): 24.


http://en.wikipedia.org/wiki/Phi_Delta_Kappan

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Labour Law Handbook (By Ojijo)2(a) of the International Labour Organization's Declaration onFundamental Principles and Rights at Work defines the "freedomof association and the effective recognition of the right tocollective bargaining" as an essential right of workers.65 TheFreedom of Association and Protection of the Right to OrganizeConvention, 1948 (C087) and several other conventionsspecifically protect collective bargaining through thecreation of international labour standards that discouragescountries from violating worker's rights to associate andcollectively bargain. 66

In June 2007 the Supreme Court of Canada extensively reviewed therationale for regarding collective bargaining as a humanright. In the case of Facilities Subsector BargainingAssociation v. British Columbia, the Court made the followingobservations:

The right to bargain collectively with an employer enhances thehuman dignity, liberty and autonomy of workers by giving themthe opportunity to influence the establishment of workplacerules and thereby gain some control over a major aspect oftheir lives, namely their work... Collective bargaining is notsimply an instrument for pursuing external ends…rather [it] isintrinsically valuable as an experience in self-government...Collective bargaining permits workers to achieve a form ofworkplace democracy and to ensure the rule of law in theworkplace. Workers gain a voice to influence the establishmentof rules that control a major aspect of their lives.67

Mutual Gains Bargaining (MGB) Mutual Gains Bargaining (MGB) is an approach to collective

bargaining intended to reach win-win outcomes for thenegotiating parties.

Instead of the traditional adversarial (i.e., "win/lose")approach (also known as "positional bargaining"), the mutualgains approach is quite similar to Principled Negotiation65 International Labour Organization (1998). Declaration on Fundamental Principles

and Rights at Work. 86th Session: Geneva. Retrieved August 29, 2007.66 C087 - Freedom of Association and Protection of the Right to Organise

Convention, 1948 (No. 87)". International Labour Organization. Retrieved 24 October 2013.

67 Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia [2007] SCC 27.


http://scc.lexum.umontreal.ca/en/2007/2007scc27/2007scc27.html

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C087

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Labour Law Handbook (By Ojijo)(first described by Roger Fisher in his book Getting to YES),where the goal is to reach a sustainable (i.e., lasting)agreement that both parties (or all parties in a multi-partynegotiation) can live with and support.

Mutual gains bargaining has been used successfully in such areasas labor-management relations and environmental negotiations.

Some principles of MGBBoth sides have legitimate interests to be recognized and

advancedApproach the issues as problems to be solvedListening builds trustEnlarge the pieSeek sustainable alternativesPattern bargainingPattern bargaining is a process in labour relations, where a

trade union gains a new and superior entitlement from oneemployer and then uses that agreement as a precedent to demandthe same entitlement or a superior one from other employers.68

In the United States, pattern bargaining was pioneered by unionssuch as the United Auto Workers and the Teamsters. The firststep of the bargaining process is the identification of atarget employer that is most likely to agree to a favorableemployment contract. For the selected company, this providesan opportunity to influence the contract for the industry,while the downside is the risk of a labor disruption ifnegotiations stall or fail. Once this contract has beensuccessfully negotiated and ratified by the unionized workers,the union declares it a "pattern agreement" and presents it tothe other employers as a take-it-or-leave-it offer.

In Australia, pattern bargaining was specifically outlawed underthe now-repealed WorkChoices legislation. The law was repealedby the Labor party after their victory in the 2007 election,but Labor's Fair Work Act, which came into force on 1 July2010, still outlaws pattern bargaining.

68 Marshall, Robert, and Antonio Merlo. 1996. Pattern bargaining. FederalReserve Bank of Minneapolis Research Department Staff Report 220.\


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Labour Law Handbook (By Ojijo)bargaining unit A bargaining unit, in labor relations, is a group of employees

with a clear and identifiable community of interests who are(under U.S. law) represented by a single labor union incollective bargaining and other dealings with management.Examples would be non-management professors, law enforcementprofessionals, blue-collar workers, clerical andadministrative employees, etc. Geographic location as well asthe number of facilities included in bargaining units can beat issue during representation cases.

The size of a company does not relate to the size of a bargainingunit. Bargaining units must consist of at least threeemployees, and must have the support of a majority ofemployees in the bargaining unit. However, the bargaining unitcan be a small portion of a large company where no otheremployees are members of a union.

union security agreement A union security agreement is a contractual agreement, usually

part of a union collective bargaining agreement, in which anemployer and a trade or labor union agree on the extent towhich the union may compel employees to join the union, and/orwhether the employer will collect dues, fees, and assessmentson behalf of the union.

Closed shop agreement The employer agrees to hire only union members. An employee who

resigns from the union must be dismissed.69

Union shop agreement The employer may hire anyone regardless of their union membership

status, but the employee must join the union within a set timeperiod (such as 30 days). An employee who resigns from theunion must be dismissed.70

Agency shop agreement The employer may hire anyone regardless of their union membership

status, and the employee need not join the union. However, all69 Pynes, Joan. Human Resources Management for Public and Nonprofit Organizations. 2d

ed. Hoboken, N.J.: John Wiley and Sons, 2004. ISBN 0-7879-7078-670 Pynes, Joan. Human Resources Management for Public and Nonprofit Organizations. 2d

ed. Hoboken, N.J.: John Wiley and Sons, 2004. ISBN 0-7879-7078-6




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Labour Law Handbook (By Ojijo)non-union employees must pay a fee (known as the "agency fee")to the union to cover the costs of collective bargaining (and,in some countries, other fees as well). An employee whoresigns from the union may not be dismissed but must pay theagency fee.71

Fair share provision agreement The employer may hire anyone regardless of their union membership

status, and the employee need not join the union. However, allnon-union employees must pay a fee (known as the "fair sharefee") to the union to cover the costs of collectivebargaining. An employee who resigns from the union may not bedismissed but must pay the fair share fee.72 In public sectorcollective bargaining, where the agency shop is oftenoutlawed, the fair share provision (almost identical to theagency fee) may be negotiated instead.73

Dues checkoff agreement A contract between the employer and union where the employer

agrees to collect the dues, fees, assessments, and othermonies from union members and/or non-members directly fromeach worker's paycheck and transmit those funds to the unionon a regular basis.74

compromise agreement A compromise agreement is a specific type of contract, regulated

by statute, between an employer and its employee (or ex-employee) under which the employee receives consideration,often a negotiated financial sum, in exchange for agreeingthat he or she will have no further claim against the employeras a result of any breach of a statutory obligation by theemployer.

collective bargaining agreement, collective agreement

71 Pynes, Joan. Human Resources Management for Public and Nonprofit Organizations. 2d ed. Hoboken, N.J.: John Wiley and Sons, 2004. ISBN 0-7879-7078-6


73 Marczely, Bernadette. Human Resource and Contract Management in the Public School: A Legal Perspective. New York: Rowman & Littlefield, 2002. ISBN 0-8108-4379-X




http://en.wikipedia.org/wiki/Special:BookSources/081084379X



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Labour Law Handbook (By Ojijo)A collective agreement or collective bargaining agreement (CBA)

is a special type of commercial agreement, usually as onenegotiated "collectively" between management (on behalf of thecompany) and trades unions (on behalf of employees). Thecollective agreement regulates the terms and conditions ofemployees in their workplace, their duties and the duties ofthe employer. It is usually the result of a process ofcollective bargaining between an employer (or a number ofemployers) and a trade union representing workers.

Surface bargainingSurface bargaining is a strategy in collective bargaining in

which one of the parties "merely goes through the motions,"with no intention of reaching an agreement.75 In this regard,it is a form of bad faith bargaining.76

Distinguishing surface bargaining from good faith bargaining isextremely difficult.77 The entire history of the negotiationsmust be assessed, including the party's intent, efforts madetoward reaching an agreement, and any behavior which may beseen as inhibiting the bargaining process.78 Surface bargainingtactics may include making proposals the other party couldnever accept, taking inflexible or unreasonable stands onissues, and/or refusing to offer alternatives to proposals.Reneging on agreements already reached during the collectivebargaining process, raising new issues late in thenegotiations, or failing to follow generally acceptedprocedures for collective bargaining may also be seen as signsof surface bargaining.79

Surface bargaining is barred under the labor law of manycountries. Federal and provincial Canadian labor law barssurface bargaining, and Canadian courts have held that thetest for determining surface bargaining is to look at thetotality of the negotiations.80 In New Zealand, surfacebargaining is a violation of the Employment Relations Act 2000

75 Carrell and Heavrin, 2001, p. 159.76 Caisley, 2007, p. 170.77 Emerson, 2009, p. 580.78 Caisley, 2007, p. 171.79 Forsyth and Stewart, p. 137.80 Willes, 1990, p. 70.


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Labour Law Handbook (By Ojijo)(as amended).81 A "Code of Good Faith" promulgated by theEmployment Relations Authority supplements the legal statute,however, and lays out a number of rules for good faithbargaining.82 In the United States, surface bargainingconstitutes an unfair labor practice under the National LaborRelations Act. American courts have held that "hardbargaining" (taking a firmly held and well-explainedposition), failing to make a concession, and/or failing toreach an agreement do not constitute surface bargaining underfederal labor law. Additional evidence, such as away-from-the-table statements or behavior, is needed to prove surfacebargaining in the U.S.

master contract, master agreement A master contract or master agreement is a collective bargaining

agreement which covers all unionized worksites in an industry,market or company, and which establishes the terms andconditions of employment common to all workers in theindustry, market or company.83

A master contract may be geographically limited and occur at thelocal, regional or national level. It may also be limited to aspecific market, whether local, regional or national.84

Although a master contract governs the general terms ofemployment that apply uniformly across the company orindustry, master contracts often provide for local terms to benegotiated.85 Some master contracts may also permit local orregional variations in order to meet special economic,competitive, or other circumstances for a union or company.86

For example, in the early 1980s the United Auto Workersexempted Chrysler from the master contract governing the U.S.81 Rudman, 2009, p. 102.82 Forsyth and Stewart, p. 137.83 Najita, Joyce, and Roberts, Harold S. Roberts' Dictionary of Industrial

Relations. Washington, D.C.: BNA Books, 1994. ISBN 087179777184 Hardin, Patrick; Higgins, Jr, John E.; Hexter, Christopher T.; and

Neighbours, John T. The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act. 4th ed. Washington, D.C.: BNA Books, 2002. ISBN 1-57018-151-9; Williams, Steve and Adam-Smith, Derek. Contemporary Employment Relations: A Critical Introduction. Oxford, England: Oxford University Press, 2005. ISBN 0-19-927243-3

85 Najita, Joyce, and Roberts, Harold S. Roberts' Dictionary of Industrial Relations. Washington, D.C.: BNA Books, 1994. ISBN 0871797771

86 Id.







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Labour Law Handbook (By Ojijo)auto industry because the company was in deep financialtrouble.87

Master contracts are common in the automobile manufacturing,shipping, package express, mining (especially coal mining),and general manufacturing industries. For example, the UAW andthe "Big Three" American automakers tend to operate in thispattern: the union selects one manufacturer with which it doesmost of its negotiation; when an agreement is reached, theunion attempts to apply the same contract to the others.88

Other areas where master agreements can be found include tiremanufacturing, public education, baking, custodial andhousekeeping services, and healthcare.89

In some cases, the goal of a master agreement is to standardizepay and benefit conditions in a market or industry so thatemployers compete on the grounds of quality services, qualityproducts, or improved workplace safety.90

Master contracts also make it easier for newly organized workers,who get rolled into existing contract rather than having tonegotiate their own first contract (with the risk thatnegotiations may drag on or collapse, causing the new union toeventually collapse).91

Traditionally, such contracts have been struck as exclusive classactions between the whole class of workers and the whole classof (or a single) employer(s), excluding the employment of anyworkers outside of it. In the United States in particularthere has been pressure from the employing class generally onthis.

Enterprise bargaining

87 Levin, Doron P. "Chrysler Makes Plea To U.A.W." New York Times. July 21, 1990.

88 Rainsberger, Paul K. "Historical Models of Collective Bargaining in theU.S." In "Collective Bargaining." University of Missouri Labor EducationProgram. No date. Accessed July 30, 2008.

89 Rauber, Chris. "CHW Hospitals Deliver Union Contract After Short Labor." San Francisco Business Times. April 25, 1997.

90 Brisbin Jr., Richard A. A Strike Like No Other Strike: Law and Resistance During the Pittston Coal Strike of 1989-1990. Baltimore, Md.: Johns Hopkins University Press, 2002. ISBN 0-8018-6901-3.

91 Royle, Tony and Towers, Brian. Labour Relations in the Global Fast-food Industry. New York: Routledge, 2002. ISBN 0-415-22167-6




http://labored.missouri.edu/Historic%20Models%20of%20Collective%20Bargaining%20in%20the%20U.S.htm



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Labour Law Handbook (By Ojijo)Enterprise bargaining is wage and working conditions being

negotiated at the level of the individual organizations,usually in Australia. Once established, they are legallybinding on employers and employees. An Enterprise BargainingAgreement (EBA) consists of a collective industrial agreementbetween either an employer and a trade union acting on behalfof employees or an employer and employees acting forthemselves.92

On the one hand collective agreements, at least in principle,benefit employers, as they allow for improved "flexibility" insuch areas as ordinary hours, flat rates of hourly pay, andperformance-related conditions. On the other hand collectiveagreements benefit workers, as they usually provide higherpay, bonuses, additional leave and enhanced entitlements (suchas redundancy pay) than an award does.

92 Hall, Richard (June 2006). "Australian Industrial Relations in 2005 - The WorkChoices Revolution". Journal of Industrial Relations 48 (3): 291–303. doi:10.1177/0022185606064786. Retrieved 26 September 2013.


http://dx.doi.org/10.1177%2F0022185606064786

http://en.wikipedia.org/wiki/Digital_object_identifier

http://jir.sagepub.com/content/48/3/291.full.pdf+html

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LABOUR RIGHTS

Labor rights, collective rights, or workers' rights Labor rights or workers' rights are a group of legal rights and

claimed human rights having to do with labor relations betweenworkers and their employers, usually obtained under labor andemployment law. In general, these rights' debates have to dowith negotiating workers' pay, benefits, and safe workingconditions. One of the most central of these rights is theright to unionize. Unions take advantage of collectivebargaining and industrial action to increase their members'wages and otherwise change their working situation. Laborrights can also take in the form of worker's control andworker's self management in which workers have a democraticvoice in decision and policy making. The labor movementinitially focused on this "right to unionize", but attentionhas shifted elsewhere.

Critics of the labor rights movement claim that regulationpromoted by labor rights activists may limit opportunities forwork. In the United States, critics objected to unionsestablishing closed shops, situations where employers couldonly hire union members. The Taft–Hartley Act banned theclosed shop but allowed the less restrictive union shop. Taft–Hartley also allowed states to pass right-to-work laws, whichrequire an open shop where a worker's employment is notaffected by his or her union membership. Labor counters thatthe open shop leads to a free rider problem.

Throughout history, workers claiming some sort of right haveattempted to pursue their interests. During the Middle Ages,the Peasants' Revolt in England expressed demand for betterwages and working conditions. One of the leaders of therevolt, John Ball famously argued that people were born equalsaying, "When Adam delved and Eve span, who was then thegentleman?" Laborers often appealed to traditional rights. Forinstance, English peasants fought against the enclosuremovement, which took traditionally communal lands and madethem private.

In England 1833, a law was passed saying that any child under theage of 9 could not work, children age 9-13 could only work 8


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Labour Law Handbook (By Ojijo)hours a day, and children aged 14–18 could only work 12 hoursa day.

Labor rights are a relatively new addition to the modern corpusof human rights. The modern concept of labor rights dates tothe 19th century after the creation of labor unions followingthe industrialization processes. Karl Marx stands out as oneof the earliest and most prominent advocates for workersrights. His philosophy and economic theory focused on laborissues and advocates his economic system of socialism, asociety which would be ruled by the workers. Many of thesocial movements for the rights of the workers were associatedwith groups influenced by Marx such as the socialists andcommunists. More moderate democratic socialists and socialdemocrats supported worker's interests as well. More recentworkers rights advocacy has focused on the particular role,exploitation, and needs of women workers, and of increasinglymobile global flows of casual, service, or guest workers.

The International Labour Organization was formed in 1919 as partof the League of Nations to protect worker's rights. The ILOlater became incorporated into the United Nations. The UNitself backed workers rights by incorporating several into twoarticles of the United Nations Declaration of Human Rights,which is the basis of the International Covenant on Economic,Social and Cultural Rights (article 6-8). These read:

Article 23 Everyone has the right to work, to free choice of employment, to

just and favorable conditions of work and to protectionagainst unemployment.

Everyone, without any discrimination, has the right to equal payfor equal work.

Everyone who works has the right to just and favorableremuneration ensuring for himself and his family an existenceworthy of human dignity, and supplemented, if necessary, byother means of social protection.

Everyone has the right to form and to join trade unions for theprotection of his interests.93

Article 2493 OHCHR: English (English) - Universal Declaration of Human Rights


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Labour Law Handbook (By Ojijo)Everyone has the right to rest and leisure, including reasonable

limitation of working hours and periodic holidays with pay.The ILO and several other groups have sought international labor

standards to create legal rights for workers across the world.Recent movements have also been made to encourage countries topromote labor rights at the international level through fairtrade.94

Core Labor StandardsIdentified by the International Labour Organisation (ILO) in the

‘Declaration of the Fundamental Principles and Rights atWork’,95 core labor standards are “widely recognized to be ofparticular importance”.96 They are universally applicable,regardless of whether the relevant conventions have beenratified, the level of development of a country or culturalvalues.97 These standards are composed of qualitative, notquantitative standards and don’t establish a particular levelof working conditions, wages or health and safety standards.They are not intended to undermine the comparative advantagethat developing countries may hold. Core labor standards areimportant human rights and are recognized in widely ratifiedhuman rights instruments including the Convention on theRights of the Child (CROC), the most widely ratified humanrights treaty with 193 parties, and the ICCPR with 160parties.98

The core labor standards are:

94 OHCHR: English (English) - Universal Declaration of Human Rights95 Asian Development Bank 2006, ‘Core Labour Standards Handbook’,

Manila http://www.adb.org/documents/core-labor-standards-handbook96 Organisation for Economic Cooperation and Development 1996 ‘Trade,

Employment and Labour Standards: A Study of Core Workers’ Rights and International Trade’

97 United Nations Global Compact, Labour, http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/labourStandards.html

98 Office of the United Nations High Commissioner for Human Rights, Ratification and Reservations: Convention on the Rights of the Child, http://www.ohchr.org/english/countries/ratification/11.htm Officeof the United Nations High Commissioner for Human Rights, Ratification and Reservations: International Covenant on Civil and Political Rights,http://www.ohchr.org/english/countries/ratification/4.htm


http://www.ohchr.org/english/countries/ratification/4.htm

http://www.ohchr.org/english/countries/ratification/11.htm

http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/labourStandards.html

http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/labourStandards.html

http://www.adb.org/documents/core-labor-standards-handbook

http://www.unhchr.ch/udhr/lang/eng.htm

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Labour Law Handbook (By Ojijo)Freedom of association:99 workers are able to join trade unions

that are independent of government and employer influence;The right to collective bargaining:100 workers may negotiate with

employers collectively, as opposed to individually;The prohibition of all forms of forced labor:101 includes security

from prison labor and slavery, and prevents workers from beingforced to work under duress;102

Elimination of the worst forms of child labor:103 implementing aminimum working age and certain working condition requirementsfor children;

Non-discrimination in employment: equal pay for equal work.Very few ILO member countries have ratified all of these

conventions due to domestic constraints yet as these rightsare also recognised in the UDHR, and form a part of customaryinternational law they are committed to respect these rights.For a discussion on the incorporation of these core laborrights into the mechanisms of the World Trade Organization,see The Recognition of Labour Standards within the World TradeOrganisation. There are many other issues outside of thiscore, in the UK employee rights includes the right toemployment particulars, an itemised pay statement, adisciplinary process at which they have the right to beaccompanied, daily breaks, rest breaks, paid holidays andmore.104

Labor rights issuesAside from the right to organize, labor movements have campaigned

on various other issues that may be said to relate to laborrights.

Many labor movement campaigns have to do with limiting hours inthe work place. 19th century labor movements campaigned for anEight-hour day. Worker advocacy groups have also sought tolimit work hours, making a working week of 40 hours or less99 ICCPR Art.22, ILO Convention 87100 ICCPR Art.22, ILO Convention 98101 ICCPR Art. 8, ILO Conventions 29 and 105102 Greenfield, G 2001 ‘Core Labor Standards in the WTO: Reducing labor to

a global commodity’, Working USA , vol.5, Iss. 1; pp 9103 CROC Art. 32 ILO Convention 138104 Prior, Katherine (1997). Workers' Rights. New York: Franklin Watts.


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Labour Law Handbook (By Ojijo)standard in many countries. A 35-hour workweek was establishedin France in 2000, although this standard has beenconsiderably weakened since then. Workers may agree withemployers to work for longer, but the extra hours are payableovertime. In the European Union the working week is limited toa maximum of 48 hours including overtime (see also WorkingTime Directive).

Labor rights advocates have also worked to combat child labor.They see child labor as exploitative, cruel, and ofteneconomically damaging. Child labor opponents often argue thatworking children are deprived of an education. In 1948 andthen again in 1989, the United Nations declared that childrenhave a right to social protection.105 In 2007, Massachusettsupdated their child labor laws that required all minors tohave work permits.106

Labor rights advocates have worked to improve workplaceconditions which meet established standards. During theProgressive Era, the United States began workplace reforms,which received publicity boosts from Upton Sinclair's TheJungle and events such as the 1911 Triangle Shirtwaist Factoryfire. Labor advocates and other groups often criticizeproduction facilities with poor working conditions assweatshops and occupational health hazards, and campaign forbetter labor practices and recognition of workers rightsthroughout the world.

The labor movement pushes for guaranteed minimum wage laws, andthere are continuing negotiations about increases to theminimum wage. However, opponents see minimum wage laws aslimiting employment opportunities for unskilled and entrylevel workers.

Illegal immigrants cannot complain to the authorities aboutunderpayment and mistreatment as they would be deported; andtheir willingness to work for low rates may depress rates ofpay for others. Similarly, legal migrant workers are sometimesabused. For instance, migrants have faced a number of allegedabuses in the United Arab Emirates (including Dubai). HumanRights Watch lists several problems including "nonpayment of

105 Prior, Katherine (1997). Workers' Rights. New York: Franklin Watts.106 Watkins, Heidi (2011). Teens and Employment. Detroit: Greenhaven.


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Labour Law Handbook (By Ojijo)wages, extended working hours without overtime compensation,unsafe working environments resulting in death and injury,squalid living conditions in labor camps, and withholding ofpassports and travel documents by employers."[14] Despite lawsagainst the practice, employers confiscate migrant workers'passports. Without their passports, workers cannot switch jobsor return home. These workers have little recourse for laborabuses, but conditions have been improving. Labor and socialwelfare minister Ali bin Abdullah al-Kaabi has undertaken anumber of reforms to help improve labor practices in hiscountry.

The right to equal treatment, regardless of gender, origin andappearance, religion, sexual orientation, is also seen by manyas a worker's right. Discrimination in the work place isillegal in many countries, but some see the wage gap betweengenders and other groups as a persistent problem.

Workplace discrimination, Employment DiscriminationWorkplace discrimination, overt and covert, is an example of

violations of international labor standards. The ILO definesworkplace discrimination as “treating people differentlybecause of certain characteristics, such as race, colour, orsex, which results in the impairment of equality and ofopportunity and treatment.”107 An overt example of workplacediscrimination is unequal pay, especially between men andwomen. Though recognized as an example of workplacediscrimination since 1919, the gender pay gap, often ameasurement of unequal pay, is estimated to be 22.9%, whichmeans that for every dollar earned by a man, a woman, in thesame position would earn 77.1 cents.108 Despite the fact thatthe ILO proposes that there are many benefits to reducing andeliminating the gender pay gap, at the current, slow rates ofgender pay reduction, the ILO estimates that “another 75 yearswill be needed to bridge this gap.”109

107 Workplace Discrimination". International Labour Organization. Retrieved 20 October 2013.

108 v Oelz, Martin &Olney, Shauna & Tomei, Manuela. "Equal Pay: An Introductory Guide". International Labour Organization. Retrieved 20 October 2013.

109 "A New Era of Social Justice". International Labour Organization. Retrieved 20 October 2013.


http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/documents/meetingdocument/wcms_155656.pdf

http://www.ilo.org/ilc/ILCSessions/100thSession/reports/reports-submitted/WCMS_154779/lang--en/index.htm

http://www.ilo.org/ilc/ILCSessions/100thSession/reports/reports-submitted/WCMS_154779/lang--en/index.htm

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Labour Law Handbook (By Ojijo)Job security is another arena where workplace discrimination can

be found. In some developing countries, like Bangladesh, jobinsecurity reflects patriarchal societies that have diminishedwomen’s options. Currently in Bangladesh, of the 1.8 millionworkers in garment factories, 1.5 million are women. From theperspective of the factory owners, the advantage of hiringwoman is the “docility that comes with disadvantage.”110 Womenhave fewer opportunities than men when it comes to decent,respectable employment. For many of these women, if they wereto lose their jobs at the garment factories, they would beforced into poverty or work in the informal sector, likeprostitution.111

Other forms of discrimination, outside of gender discrimination,include discrimination based on race & ethnicity, age,religion, political opinions, social origins, disabilities,sexual orientations, genetics, and lifestyle. The ILOidentifies all these forms of discrimination as violations ofinternational labor standards.112

Child LaborAccording to the ILO, child labor is “work that deprives children

of their childhood, their potential and their dignity, andthat is harmful to physical and mental development.” The ILOclassifies work conducted by children into three categories:children in employment, child labor, and hazardous work. TheILO condemns both child labor and hazardous work with the goalof eliminating hazardous child labor by 2016. In 2012, the ILOestimated that 168 million children (11% of the world’schildren) were engaged in child labor, of which, 85 millionengaged in hazardous work. ILO Convention No. 5 adopted in1919 and entered into force in 1921 was the first ILOconvention regulating child labor. Specifically, the mainprovision of the article stated “children under the age offourteen years shall not be employed or work in any public or110 Kabeer, Naila. "Globalization, labor standards, and women's rights:

dilemmas of collective (in)action in an interdependent world", Feminist Economics 10, no. 1 (2004): 3-35, accessed March 18, 2011.

111 Kabeer, Naila. "Globalization, labor standards, and women's rights: dilemmas of collective (in)action in an interdependent world", Feminist Economics 10, no. 1 (2004): 3-35, accessed March 18, 2011.

112 "Equality at work: The continuing challenge". International Labour Organization. Retrieved 20 October 2013.


http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_154779.pdf

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Labour Law Handbook (By Ojijo)private industrial undertaking.” Since its inception in 1919,several other ILO conventions had been adopted that havemodified and expanded the initial 1919 convention. Today, theC138 Minimum Age Convention, 1973 and C182 Worst Forms ofChild Labour Convention 1999 have replaced all the previousconventions. The Minimum Age Convention defines the minimumage children are allowed to work. Children, unless underspecial allowances, are not allowed to engage in hazardouswork until the age of 18. The basic minimum age for childlabor is 15 (14 for developing countries), and the minimumwage for light work, which may not interfere with education orvocational orientation and training, is 13 (12 for developingcountries). C182 urges all governments to take immediateaction to identify and eliminate the worst forms of childlabour. The following are defined as hazardous work accordingto the ILO:

¯ “Work which exposes children to physical, psychological, or sexual abuse¯ Work underground, underwater, at dangerous heights, or in confined spaces¯ Work with dangerous machinery, equipment, and tools, or which involves the

manual handling or transport of heavy loads¯ Work in an unhealthy environment which may, for example, expose children to

hazardous substances, agents, or processes, or to temperatures, noise levels, orvibrations, damaging to their health

¯ Work under particularly difficult conditions such as work for long hours or duringthe night or work where the child is unreasonably confined to the premises of theemployer”

The majority of UN Member States has ratified both C138 and C182.The Worst Forms of Child Labour Convention (C182) has beenratified by 177 nations, while 8 countries (Cuba, Eritrea,India, Marshall Islands, Myammar, Palau, Somalia, Tuvalu) haveyet to ratify it. The Minimum Age Convention (C138) has beenratified by 166 countries, while 19 countries have yet toratify it. Notably, Australia, the United States, Canada,Mexico, India, and Bangladesh, are all member states that havenot ratified the Minimum Age Convention (C138). 113

Unsafe labor practices

113 "Ratifications of C138 - Minimum Age Convention, 1973 (No. 138)". International Labour Organization. Retrieved20 October 2013.


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Labour Law Handbook (By Ojijo)Operating under the mantra that “decent work is safe work,” the

ILO Programme on Safety and Health at Work and theEnvironment, SafeWork, has the goal of making work safer forall. According to the ILO, someone dies from a work-relatedaccident or disease every 15 seconds. Unsafe labor practiceshave a long, sordid history. From the 1911 Triangle ShirtwaistFactory fire to the 2013 fertilizer explosion in West, Texas,industrial disasters negatively affect the lives of workersand their dependents with high associated economic costs.Since its creation in 1919, ensuring worker safety has beenone of the ILO’s fundamental missions. The ILO has over itshistory adopted several conventions that have the goal ofmaximizing worker safety and health. Currently, there arethree fundamental conventions that are in effect: theOccupation Safety and Health Convention (C155, 1981), theOccupational Health Services Convention (C161, 1985), and thePromotional Framework for Occupational Safety and HealthConvention (C187, 2006). The most recent convention has thestated aim of “promoting a preventative safety and healthculture and progressively achieving a safe and healthy workingenvironment.” 114 One challenge that the ILO faces is the lowratification levels of the fundamental health and safetyconventions. C155, C161, and C187 have been ratified by 60,31, and 25 nations respectively. From the perspective of theILO failing to meet the expectations delineated in theconventions are examples of international labor standardsviolations.

114 "International Labour Standards on Occupational safety and health". International Labour Organization. Retrieved20 October 2013.


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COMPENSATION

Strike pay Strike pay is the name of payments made by a trade union to

workers who are on strike as help in meeting their basic needswhile on strike, often out of a special reserve known as astrike fund. Union workers reason that the availability ofstrike pay increases their leverage at the bargaining tableand actually decreases the probability of a strike, since theemployers are aware that their employees have this financialresource available to them if they choose to strike.

union wage premium A union wage premium refers to the degree in which union wages

exceed non-union member wages. Union wage premiums are one ofthe most researched and analyzed issues in economicsespecially in labor economics.115 Unions and their struggle forwages and better benefits usually target larger firms thathave a concentrated industry. Unions have an effect on wages,the probability of gaining benefits, productivity of theworker, and workplace protections.116

Workers' compensation Workers' compensation is a form of insurance providing wage

replacement and medical benefits to employees injured in thecourse of employment in exchange for mandatory relinquishmentof the employee's right to sue his or her employer for thetort of negligence. The tradeoff between assured, limitedcoverage and lack of recourse outside the worker compensationsystem is known as "the compensation bargain".117

While plans differ among jurisdictions, provision can be made forweekly payments in place of wages (functioning in this case asa form of disability insurance), compensation for economic115 Bratsberg, Bernt; James F. Ragan, Jr. (October 2002). "Changes in the

Union Wage Premium by Industry". Industrial and Labor Relations Review (Cornell University, School of Industrial & Labor Relations) 56 (1): 65–83. doi:10.2307/3270649. ISSN 0019-7939. JSTOR 3270649.

116 Fang, Tony; Verma, Anil (Winter 2002). "Union wage premium". Perspectives on Labour and Income (Statistics Canada) 3 (9): 17–23. Retrieved 3 September 2009.

117 Holborn, Hajo: A History of Modern Germany – 1840–1945: Princeton University Press; 1969; pp. 291–93.


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Labour Law Handbook (By Ojijo)loss (past and future), reimbursement or payment of medicaland like expenses (functioning in this case as a form ofhealth insurance), and benefits payable to the dependents ofworkers killed during employment (functioning in this case asa form of life insurance).

General damage for pain and suffering, and punitive damages foremployer negligence, are generally not available in workers'compensation plans, and negligence is generally not an issuein the case. These laws were first enacted in Europe andOceania, with the United States following shortly thereafter.

Statutory compensation lawWorkers' compensation statutes are designed to ensure that

employees who are injured or disabled on the job are notrequired to cover medical bills related to their on-the-jobinjury, and are provided with monetary awards to cover loss ofwages directly related to the accident, as well as tocompensate for permanent physical impairments. The intent ofthese statutes is to eliminate the need for litigation byhaving employees give up the potential for pain and sufferingrelated awards in exchange for not being required to provetort (legal fault) on the part of their employer.

These laws also provide benefits for dependents of those workerswho are killed because of work-related accidents or illnesses.Some laws also protect employers and fellow workers bylimiting the amount an injured employee can recover from anemployer and by eliminating the liability of co-workers inmost accidents. State statutes [in the United States]establish this framework for most employment. Federal statutes[in the United States] are limited to federal employees orthose workers employed in some significant aspect ofinterstate commerce.118

The fairness of workers' compensation statutes is highlycontroversial, with the claimants (injured workers) andclaimant attorneys arguing the need for greater benefits, andthe employer/insurance carrier side arguing that excessivefraud in the system causes unnecessary and inappropriatecosts.118 Holborn, Hajo: A History of Modern Germany – 1840–1945: Princeton University

Press; 1969; pp. 291–93.


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Labour Law Handbook (By Ojijo)Workers' compensation fraudFraud is a problem which plagues workers' compensation systems in

every country, with billions of dollars being spent inunnecessary litigation, surveillance, legal fees, andsettlements worldwide. Workers' compensation fraud iscommitted by doctors, lawyers, employers, insurance companyemployees and claimants, and occurs in both the private andpublic sectors.119

The topic of workers' compensation fraud is highly controversial,with claimant supporters arguing that fraud by claimants israre – as low as one-third of one percent, others focusing onthe widely reported National Insurance Crime Bureau statisticthat workers' compensation fraud accounts for $7.2 billion inunnecessary costs, and government entities acknowledging that"there is no generally accepted method or standard formeasuring the extent of workers' compensation fraud ... as aconsequence, there are widely divergent opinions about thesize of the problem and the relative importance of the issue."

According to the Coalition Against Insurance Fraud, tens ofbillions of dollars in false claims and unpaid premiums arestolen in the U.S. alone every year.120

employee compensation fraudThe most common forms of workers' compensation fraud by workers

are:¯ Remote injury. Workers get injured away from work, but say

they were hurt on the job so that their workers' compensationpolicy will cover the medical bills.

¯ Inflating injuries. A worker has a fairly minor job injury,but lies about the magnitude of the injury in order to collectmore workers' compensation money and stay away from worklonger.

119 Gruson, KI; Huang, K; Wanich, T; Depalma, AA (February 2013). "Workers' compensation and outcomes of upper extremity surgery.". The Journal of the American Academy of Orthopaedic Surgeons 21 (2): 67–77. doi:10.5435/JAAOS-21-02-67.PMID 23378370.

120 Quiggle, James. "Worker's Compensation Fraud". Coalition Against Insurance Fraud. Retrieved 27 February 2013.


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Labour Law Handbook (By Ojijo)¯ Faking injuries. Workers fabricate an injury that never took

place, and claim it for workers' compensation benefits.121

¯ Old injury. A worker with an old injury that never quitehealed claims it as a recent work injury in order to getmedical care covered.

¯ Malingering. A worker stays home by pretending the disabilityis ongoing when it is actually healed.

¯ Failure to Disclose. A worker knowingly, or unknowingly, makesa false statement or representation about their injury.

employer compensation fraud The most common forms of workers' compensation fraud by employers

are:¯ Underreporting payroll. An employer reports that workers are

paid less than they actually are in order to lower theirpremiums.

¯ Inflating experience. An employer claims workers are moreexperienced than they actually are in order to make them seemless risky and therefore less expensive to cover.

¯ Evasion. An employer fails to obtain workers' compensation fortheir employees when it is required by law. Workers are oftendeceived into thinking they are covered when they are not.122

121 Wertz, Keith (2000). Managing Worker's Compensation: A Guide to Injury Reduction. CRC press. p. 207.

122 Oliphant, Keith (2012). Employers' Liability and Workers' Compensation. Walter deGruyter. p. 482.


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INDUSTRIAL ACTIONS

unfair list, strike list or do not work order An unfair list, also known as a strike list or a do not work

order, is a term describing a list, compiled by trade unions,of employers who are known by members to have engaged inunfair or strike-worthy labor practices, including:

¯ Refusing to engage in collective bargaining negotiations with a trade union¯ refusing to sign applicable collective bargaining agreements (including MBAs)¯ failing to participate in grievance and arbitration procedures¯ failing to abide by the final award of an arbitrator¯ violating labor laws

Typically, for purposes of solidarity, union members areprohibited by union bylaws from engaging in a contract for therendering of services to entities which are listed on theunfair list.

Strike action, labor strike, labour strike, on strike, greve Strike action, also called labor strike, labour strike, on

strike, greve (of French: grève), or simply strike, is a workstoppage caused by the mass refusal of employees to work. Astrike usually takes place in response to employee grievances.

recognition strike A recognition strike is an industrial strike implemented in order

to force a particular employer or industry to recognize atrade union as the legitimate collective bargaining agent fora company's workers. They were more common in North Americaprior to the advent of modern labor law which usually has aprocess which legally compels an employer to recognize a unionthat has been properly certified and thus shown that it hasthe support of the workers in a specific bargaining unit.

Solidarity action, secondary action" or "boycott" or "sympathystrike

Solidarity action (also known as "secondary action" or "boycott"or "sympathy strike" is industrial action by a trade union insupport of a strike initiated by workers in another, separateenterprise. The term "secondary action" is often used with theintention of distinguishing different types of trade disputewith a worker's direct employer, and so may be used to refer Lawpronto Training Manuals

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Labour Law Handbook (By Ojijo)to a dispute with the employer's parent company, itssuppliers, financiers, contracting parties, or any otheremployer in another industry.

strike notice, notice to strikeA strike notice (or notice to strike) is a document served by

members of a trade union or an analogous body of workers to anemployer or negotiator stating an intent to commit an upcomingstrike action. The document largely contains:

¯ an overview of grievances and conditions¯ a statement that negotiations with the employer have failed¯ an intended time and duration for the strike¯ advice to prepare for the impact of the strike and return to the negotiating table at

the earliest

A strike notice is usually issued to an employer or negotiatorsafter union leadership and participating workers have agreedon the set terms of a strike action. In contrast, a wildcatstrike action usually involves workers going on strike withoutthe approval of union leadership or the serving of a notice.

Strike notices are often legally required of public sectorworkers or unions within a specific period (i.e., 10 daysbefore the intended strike action commencement).

Occupation of factories Occupation of factories is a method of the workers' movement used

to prevent lock outs. They may sometimes lead to "recoveredfactories," in which the workers self-manage the factories.

Precarious work Precarious work is non-standard employment that is poorly paid,

insecure, unprotected, and cannot support a household.123 Inrecent decades there has been a dramatic increase inprecarious work due to such factors as globalization, theshift from the manufacturing sector to the service sector, andthe spread of information technology. These changes havecreated a new economy which demands flexibility in the

123 Fudge, Judy; Owens, Rosemary (2006). "Precarious work, women and the new economy: the challenge to legal norms". In Fudge, Judy; Owens, Rosemary. Precarious work, women and the new economy: the challenge to legal norms. Onati International Series in Law and Society. Oxford: Hart Publishing. pp. 3–28. ISBN 9781841136165.




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Labour Law Handbook (By Ojijo)workplace and, as a result, caused the decline of the standardemployment relationship and a dramatic increase in precariouswork. An important aspect of precarious work is its genderednature, as women are continuously over-represented in thistype of work.

PrecarityPrecarity is a condition of existence without predictability or

security, affecting material and/or psychological welfare.Specifically, it is applied to the condition of intermittentor underemployment and the resultant precarious existence. Thesocial class defined by this condition has been termed theprecariat.

general strike, mass strike A general strike (or mass strike) is a strike action in which a

substantial proportion of the total labour force in a city,region, or country participates. General strikes arecharacterized by the participation of workers in a multitudeof workplaces, and tend to involve entire communities. Generalstrikes first occurred in the mid-19th century, and havecharacterized many historically important strikes.

sit-down strike A sit-down strike is a form of civil disobedience in which an

organized group of workers, usually employed at factories orother centralized locations, take possession of the workplaceby "sitting down" at their stations, effectively preventingtheir employers from replacing them with strikebreakers or, insome cases, moving production to other locations.

slowdown, 'go-slow' A slowdown (usually called a 'go-slow' in British English) is an

industrial action in which employees perform their duties butseek to reduce productivity or efficiency in their performanceof these duties. A slowdown may be used as either a prelude oran alternative to a strike, as it is seen as less disruptiveas well as less risky and costly for workers and their union.Striking workers usually go unpaid and risk being replaced, soa slowdown is seen as a way to put pressure on managementwhile avoiding these outcomes. Other times slowdowns are


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Labour Law Handbook (By Ojijo)accompanied by intentional sabotage on the part of workers toprovide further disruption.

Nonetheless, workers participating in a slowdown are oftenpunished, sometimes by firing and other times by law.

Bossnapping Bossnapping is a form of lock-in where employees detain

management in the workplace, often in protest against lay-offsand redundancies, and has especially been carried out inFrance.

stay away A stay away, also known as a stay-away or stayaway, is a form of

protest where people are told to "stay away" from work,similar to a general strike.

Labor unrest Labor unrest is organizing and strike actions undertaken by labor

unions, especially where labor disputes become violent orwhere industrial actions in which members of a workforceobstruct the normal process of business and generateindustrial unrest are essayed.

industrial unrest Labor unrest is organizing and strike actions undertaken by labor

unions, especially where labor disputes become violent orwhere industrial actions in which members of a workforceobstruct the normal process of business and generateindustrial unrest are essayed.

grievance In a trade union, a grievance is a complaint filed by an employee

which may be resolved by procedures provided for in acollective agreement or by mechanisms established by anemployer. Such a grievance may arise from a violation of thecollective bargaining agreement or violations of the law, suchas workplace safety regulations. All employees have thecontractual right to raise a grievance, and there is astatutory Acas Code of Practice for handling grievances.

Ordinarily, unionized workers must ask their operations managersfor time during work hours to meet with a shop steward in


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Labour Law Handbook (By Ojijo)order to discuss the problem, which may or may not result in agrievance. If the grievance cannot be resolved throughnegotiation between labor and management, mediation,arbitration or legal remedies may be employed. Typically,everyone involved with a grievance has strict time lines whichmust be met in the processing of this formal complaint, untilit is resolved. Employers cannot legally treat an employee anydifferently whether he or she has filed a grievance or not.The difference between a grievance and a complaint, in theunionized workplace, is whether the subject matter relates tothe collective bargaining agreement.

A serious grievance may lead to a strike action.Occupation of factories Occupation of factories is a method of the workers' movement used

to prevent lock outs. They may sometimes lead to "recoveredfactories," in which the workers self-manage the factories.

Organizational dissent Organizational dissent is the "expression of disagreement or

contradictory opinions about organizational practices andpolicies".124 Since dissent involves disagreement it can leadto conflict, which if not resolved, can lead to violence andstruggle. As a result, many organizations send the message –verbally or nonverbally – that dissent is discouraged.However, recent studies have shown that dissent serves as animportant monitoring force within organizations. Dissent canbe a warning sign for employee dissatisfaction ororganizational decline. Redding125 found that receptiveness todissent allows for corrective feedback to monitor unethicaland immoral behavior, impractical and ineffectualorganizational practices and polices, poor and unfavorabledecision making, and insensitivity to employees' workplaceneeds and desires. Furthermore, Eilerman126argues that thehidden costs of silencing dissent include: wasted and lost

124 Kassing, J.W. (1998) Development and Validation of the Organizational Dissent Scale

125 Redding, W.C. (1985). "Rocking boats, blowing whistles, and teaching speech communication." Communication Education, 34, 245–258.

126 Eilerman, D. (February 2006). Conflict: Personal dynamics and choice. Retrieved September 17, 2007


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Labour Law Handbook (By Ojijo)time, reduced decision quality, emotional and relationshipcosts, and decreased job motivation. Perlow127 found thatemployee resentment can lead to a decrease in productivity andcreativity which can result in the organization losing money,time, and resources.

There are three types of dissent: articulated, latent, anddisplaced128.

Articulated dissentInvolves expressing dissent openly and clearly in a constructive

fashion to members of an organization that can effectivelyinfluence organization adjustment. This may includesupervisors, management, and corporate officers.

Latent dissentEmployees resort to expressing dissent to either their coworkers

or other ineffectual audiences within the organization.Employees employ this route when they desire to voice theiropinions but lack sufficient avenues to effectively expressthemselves.

Displaced dissentInvolves expressing dissent to external audiences, such as family

and friends, rather than media or political sources sought outby whistle-blowers.

overtime ban An overtime ban is a form of industrial action where employees

limit their working time to the hours specified in theircontracts, refusing to work any overtime. Overtime bans areless disruptive than strike action, and since there is nobreach of contract by the employees there is less chance ofdisciplinary action by the employer than there is withstrikes. However, an overtime ban can have a significantimpact on industries which normally operate outside of regularoffice hours, such as emergency services, public transport, orretail.127 Perlow, L.A. (May 26, 2003). When silence spells trouble at work.

Harvard Business School Working Knowledge. Retrieved September 20, 2007 from the Harvard Business School Web site

128 Kassing, J.W. (2001). "From the look of things: Assessing perceptions of organizational dissenters." Communication Research, 21, 553–574.


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Labour Law Handbook (By Ojijo)An overtime ban is similar to a work-to-rule, in that both

involve employees refusing to do more than is strictlyrequired of them. However, and in contrast with a work-to-rule, when an overtime ban is in place workers may stillperform duties not required of them, providing they do not gooutside their contracted hours.

Industrial action, job action Industrial action (Europe, India, South Africa and Australia) or

job action (Canada and US) refers collectively to any measuretaken by trade unions or other organised labour meant toreduce productivity in a workplace. Quite often it is used andinterpreted as a euphemism for strike or mass strike, but thescope is much wider. Industrial action may take place in thecontext of a labour dispute or may be meant to effectpolitical or social change. Specifically industrial action mayinclude one or more of the following:

¯ Strike¯ Occupation of factories¯ Work-to-rule¯ General strike (mass strike)¯ Slowdown (or Go-slow)¯ Overtime ban

walkout In labor disputes, a walkout is a labor strike, the act of

employees collectively leaving the workplace as an act ofprotest.

A walkout can also mean the act of leaving a place of work,school, a meeting, a company, or an organization, especiallyif meant as an expression of protest or disapproval.

A walkout can be seen as different from a strike in that awalkout can occur spontaneously, and need not necessarilyinvolve all the workers present, whereas a strike is oftenvoted on beforehand by the workers, giving notification bothto all of the workers and to the company affected.

Walkouts have often been staged against the presence of a speakeror the content of an in-progress speech at a meeting. Theprotest, which is often a silent, non-violent means ofexpressing disapproval, is often interpreted as an exercise of


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Labour Law Handbook (By Ojijo)the freedom of association while allowing the speaker toexercise the freedom of speech, albeit with a reduced audiencein attendance.

Contingent work, casual work Contingent work, also sometimes known as casual work, is a

neologism which describes a type of employment relationshipbetween an employer and employee. There is no universallyagreed consensus on what type of working arrangementconstitutes contingent work, but it is generally considered tobe work with at least one of the following characteristics:

¯ Temporary or without job security¯ Part time¯ Paid on a piece work basis

Whether a person who does contingent work can be described as'having a job' is debatable, but contingent work is usuallynot considered to be a career or part of a career. One of thefeatures of contingent work is that it usually offers littleor no opportunity for career development.

If a job is full time, permanent, and pays a regular salary or afixed wage for regular hours, it is usually not considered tobe contingent work.

Contingent work is not an entirely neutral term as commentatorswho use the phrase generally consider it to be a socialproblem. Employment agencies and classified advertising mediaare more likely to use the phrase casual work, particularly toattract students who wish to earn money during the summervacation but who would not consider the work as part of along-term career. All casual work is considered to becontingent work, but not all contingent work is casual. Inparticular, part time jobs, or jobs in organizations that havea high staff turnover, may be considered contingent work butmay not be casual.

contingent workforce A contingent workforce is a provisional group of workers who work

for an organization on a non-permanent basis, also known asfreelancers, independent professionals, temporary contractworkers, independent contractors or consultants. ContingentWorkforce Management (CWM) is the strategic approach to


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Labour Law Handbook (By Ojijo)managing an organization's contingent workforce in a way thatit reduces the company's cost in the management of contingentemployees and mitigates the company's risk in employing them.[


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whipsaw strike, selective strike A whipsaw strike (also called a selective strike) is a strike by

a trade union against only one or a few employers in anindustry or a multi-employer association at a time. The strikeis often of a short duration, and usually recurs during thelabor dispute or contract negotiations—hence the name"whipsaw."

wildcat strike action, wildcat strike A wildcat strike action, often referred to as a wildcat strike,

is a strike action undertaken by unionized workers withoutunion leadership's authorization, support, or approval; thisis sometimes termed, an unofficial industrial action. Wildcatstrikes were the key pressure tactic.

Work-to-rule, Italian strikeWork-to-rule is an industrial action in which employees do no

more than the minimum required by the rules of their contract,and precisely follow safety or other regulations in order tocause a slowdown, rather than to serve their purposes.129 Suchan action is considered less disruptive than a strike orlockout; and just obeying the rules is less susceptible todisciplinary action. Notable examples have included nursesrefusing to answer telephones and police officers refusing toissue citations. Refusal to work overtime, travel on duty orsign up to other tasks requiring employee assent are othermanifestations of using work-to-rule as industrial action.

Work to rule has been described thus: " 'Work to rule' has aperfectly well-known meaning, namely, 'Give the rules ameaning which no reasonable man could give them and work tothat.' "130

Sometimes the term "rule-book slowdown" is used in a slightlydifferent sense than "work-to-rule": the former involvesapplying to the letter rules that are normally set aside orinterpreted less literally to increase efficiency; the latter,129 Gareth Morgan (1998). Images of Organization. Thousand Oaks, California

USA: Sage Publications. p. 165. ISBN 0-7619-1752-7. Retrieved 20 June 2012.

130 Gareth Morgan (1998). Images of Organization. Thousand Oaks, California USA: Sage Publications. p. 165. ISBN 0-7619-1752-7. Retrieved 20 June 2012.




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Labour Law Handbook (By Ojijo)refraining from activities which are customary but notrequired by rule or job description but the terms may be usedsynonymously.

Work-to-rules are usually accompanied by the withdrawal ofgoodwill, for example insistence in taking all legallyentitled breaks, and refusing to work unpaid overtime.131

Sometimes work-to-rule can be considered by employers asmalicious compliance as they pursue legal action againstworkers.

"Work-to-rule" is also known as "Italian strike."132 In Italy andother countries (e.g. Slovenia or Croatia) it is known as a"white strike" ("sciopero bianco", "bela stavka", "bijelištrajk").

green ban A green ban is a form of strike action, usually taken by a trade

union or other organised labour group, which is conducted forenvironmentalist or conservationist purposes.

Picketing is a form of protest in which people (called picketers)congregate outside a place of work or location where an eventis taking place. Often, this is done in an attempt to dissuadeothers from going in ("crossing the picket line"), but it canalso be done to draw public attention to a cause. Picketersnormally endeavor to be non-violent. It can have a number ofaims, but is generally to put pressure on the party targetedto meet particular demands and/or cease operations. Thispressure is achieved by harming the business through loss ofcustomers and negative publicity, or by discouraging orpreventing workers and/or customers from entering the site andthereby preventing the business from operating normally.

Picketing Picketing is a common tactic used by trade unions during strikes,

who will try to prevent dissident members of the union,

131 Campbell, Dennis (October 13, 2014). "NHS unions tell Hunt: talk to us or face further strikes". The Guardian. Retrieved December 19, 2014.

132 Leopold Haimson and Giulio Sapelli, ed. (1992). Strike Social Conflict and the First World War. Milan, Italy: Fondazione Giangiacomo Feltrinelli Milano. p. 543. ISBN 88-07-99047-4. Retrieved 20 June 2012.




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Labour Law Handbook (By Ojijo)members of other unions and non-unionised workers fromworking. Those who cross the picket line and work despite thestrike are known pejoratively as scabs.

Informational picketing is the legal name given to the type ofpicketing described above. Informational picketing, asdescribed by Merriam-Webster's Dictionary of Law, entailspicketing by a group, typically a labor or trade union, whichinform the public about a matter of concern important to theunion. This is a popular picketing technique for nurses to useoutside of healthcare facilities. For example, on April 5,2006 the nurses of the University of Massachusetts MemorialMedical Center participated in two separate informationalpicketing events to protect the quality of their nursingprogram. Informational picketing was used to gain publicsupport and promote further bargaining with management.

mass picket A mass picket is an attempt to bring as many people as possible

to a picket line, in order to demonstrate support for thecause. It is primarily used when only one workplace is beingpicketed, or for a symbolically or practically importantworkplace. Due to the numbers involved, a mass picket may turninto a potentially unlawful blockade.

Secondary picketing Secondary picketing is where people picket locations that are not

directly connected to the issue of protest. This would includecomponent suppliers the picketed business relies on, retailstores that sell products by the company being picketedagainst, and the private homes of the company's management. Inmany jurisdictions, secondary pickets do not have the samecivil law protection as primary pickets. An example of this isthe Battle of Saltley Gate in 1972 in Britain, when strikingminers picketed a coke works in Birmingham and were laterjoined by thousands of workers from other industries in thelocal area. This tactic of picketing was outlawed in theUnited Kingdom by the Conservative Party government ofMargaret Thatcher in the mid-1980s, but the Labour oppositionled by Neil Kinnock was pushing for it to be legalised in therun-up to the 1987 general election. However, these plans had


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Labour Law Handbook (By Ojijo)been dropped by the time Labour returned to power under TonyBlair in 1997.

flying pickets Another tactic is to organize highly mobile pickets who can turn

up at any of a company's locations on short notice. Theseflying pickets are particularly effective againstmultifacility businesses which could otherwise pursue legalprior restraint and shift operations among facilities if thelocation of the picket were known with certainty ahead oftime.

Picketing is also used by pressure groups across the politicalspectrum. In particular, picketing has been employed byreligious groups such as the Westboro Baptist Church whopicket a variety of stores or events that they consider to besinful.

Disruptive picketingDisruptive picketing is where pickets illegally use force, or the

threat of force, or physical obstruction, to injure orintimidate or otherwise interfere with either staff, serviceusers, or customers. For example, during the UK miners' strike(1984-1985), strikebreakers were pelted by pickets withstones, paint and brake fluid.

Increasingly, with the introduction of the Internet and digitalphotography, picketers have placed cameras at the entrances oftheir targets, often accompanied with written notices warningthose who cross the picket line that their photographs (and,where known, their names and addresses) will be posted on thepicketers' website. The legality of these sort of tactics havebeen challenged in some jurisdictions, on the grounds thatsuch tactics violate privacy rights and/or are intended toincite later reprisals against such individuals.


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TRADE UNION

trade union, labor union A trade union or labor union (American English) is an

organization of workers who have come together to achievecommon goals such as protecting the integrity of its trade,achieving higher pay and benefits such as health care andretirement, increasing the number of employees an employerassigns to complete the work, safety standards, and betterworking conditions. The trade union, through its leadership,bargains with the employer on behalf of union members (rankand file members) and negotiates labour contracts (collectivebargaining) with employers. The most common purpose of theseassociations or unions is "maintaining or improving theconditions of their employment". This may include thenegotiation of wages, work rules, complaint procedures, rulesgoverning hiring, firing and promotion of workers, benefits,workplace safety and policies.

Unions may organize a particular section of skilled workers(craft unionism), a cross-section of workers from varioustrades (general unionism), or attempt to organize all workerswithin a particular industry (industrial unionism). Theagreements negotiated by a union are binding on the rank andfile members and the employer and in some cases on other non-member workers. Trade unions traditionally have a constitutionwhich details the governance of their bargaining unit and alsohave governance at various levels of government depending onthe industry that binds them legally to their negotiations andfunctioning.

Originating in Europe, trade unions became popular in manycountries during the Industrial Revolution. Trade unions maybe composed of individual workers, professionals, pastworkers, students, apprentices and/or the unemployed.

Union dues Union dues are a regular payment of money made by members of

unions. Dues are the cost of membership; they are used to fundthe various activities which the union engages in. Nearly allunions require their members to pay dues.


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Labour Law Handbook (By Ojijo)Depending on the level of democratic control in a union, union

members may have little to a great deal of say over the levelof dues, what dues are used for, and how often dues arecollected. Many union members pay union dues out of theirwages, although some unions collect dues separately from thepaycheck. Union dues may be used to support a wide variety ofprograms or activities, including: Paying the salaries and/orbenefits of full-time or part-time union leaders and/or staff;union governance; legal representation; legislative lobbying;political campaigns; pension, health, welfare, and safetyfunds; and/or the union strike fund.

Dues are different from fees and assessments. Fees are generallyone-time-only payments made by the union member to the unionto cover the administration of ongoing programs or activities.One example is the initiation fee, a fee charged by the unionto the worker when the employee first joins the union. Theinitiation fee covers the administrative costs of joining theunion. Fees may, however, be ongoing. For example, a unionprogram (such as a welfare or benefit fund) may be offeredonly to those union members who pay a regular fee toparticipate in the fund.

Since participation in the fund is not a requirement of unionmembership, the payment qualifies as a fee payment and not adues payment. Assessments are generally one-time-only paymentsmade by the union member to the union to cover a specialprogram or activity. These special programs may or may not beongoing, and may or may not operate for a limited time or in alimited fashion. An example is an organizing assessment, apayment the union may levy on its members to establish a unionorganizing fund. Another example is a one-time-only assessmentto establish a fund; since the fund requires a large capitalinfusion to be established, the assessment is used to raisethis money.

Many local unions are affiliated with city, province/state,regional, or national bodies. Often, these bodies levy theirown dues on local unions, and a union member's dues mayinclude the dues these other union organizations impose.

The legal status of union dues may be regulated by law. Dependingon each country's labour law and/or the kind of union security


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Labour Law Handbook (By Ojijo)agreement permitted by law, not all dues may be collected fromall members.

The level of union dues varies widely. Some unions collect apercentage of each worker's pay (which may be limited to basewages only or include additional pay such as overtime income).Others collect a percentage of each worker's pay, but thepercentage itself varies on a sliding scale (with lower-paidworkers paying a lower percentage). Some dues ("set-dues") maybe set at a specific level. For example, "each worker must be150 Denali per month." Some unions use a combination ofpercentage and "set-dues". Collection frequency also varieswidely, and may be tied to the receipt of the paycheck or on acalendar basis (biweekly, monthly, or yearly).

Collection methods also exhibit wide variation. In industrializedcountries the "dues checkoff" mechanism is commonplace, wherethe employer agrees to deduct all union dues, fees, andassessments automatically from each worker's pay-check andtransmit the funds to the union on a regular basis. Manyunions, however, collect dues from workers directly. Forexample, the Industrial Workers of the World prohibitemployers to collect dues on its behalf through theirconstitution.

national trade union center A national trade union center is a federation or confederation of

trade unions in a single country. Nearly every country in theworld has a national trade union center, and many have morethan one. When there is more than one national center, it isoften because of ideological differences—in some cases long-standing historic differences.

union organizer, union organiser A union organizer (or union organiser) is a specific type of

trade union member (often elected) or an appointed unionofficial. A majority of unions appoint rather than elect theirorganizers.

In most unions, the organizer's role is to recruit groups ofworkers under the organizing model. In other unions, theorganizer's role is largely that of servicing members andenforcing work rules, similar to the role of a shop steward.


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Labour Law Handbook (By Ojijo)In some unions, organizers may also take on industrial/legalroles such as making representations before Fair WorkAustralia, tribunals, or courts.

union representative, union steward, shop steward A union representative, union steward, or shop steward is an

employee of an organization or company who represents anddefends the interests of her/his fellow employees but who isalso a labor union official. Rank-and-file members of theunion hold this position voluntarily (through democraticelection by fellow workers or sometimes by appointment of ahigher union body) while maintaining their role as an employeeof the firm. As a result, the union steward becomes asignificant link and conduit of information between the unionleadership and rank-and-file workers.

The duties of a union steward vary according to each laborunion's constitutional mandate for the position. In general,most union stewards perform the following functions:

Monitor and enforce the provisions of the collective bargainingagreement (labor contract) to ensure both the firm and unionworker are not violating the terms of the agreement.

Ensure that the firm is in compliance with all federal, state andlocal laws and regulations.

Represent and defend fellow workers whom the firm believesviolated company policy or the terms and conditions of thecollective bargaining agreement, often through the grievanceprocess.

Communicate and disseminate official union policy, memos anddirectives to workers in the shop.

Popularize and promote union consciousness and values in theworkplace.


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WORKERS RIGHTS

right to collectively bargain The right to collectively bargain is recognized through

international human rights conventions. Article 23 of theUniversal Declaration of Human Rights identifies the abilityto organize trade unions as a fundamental human right.133 Item2(a) of the International Labour Organization's Declaration onFundamental Principles and Rights at Work defines the ‘freedom ofassociation and the effective recognition of the right tocollective bargaining’ as an essential right of workers.134

strike actionStrike action is the weapon of the workers most associated with

industrial disputes, and certainly among the most powerful. Inmost countries, strikes are legal under a circumscribed set ofconditions. Among them may be that:

و The strike is decided on by a prescribed democratic process. (Wildcat strikes areillegal).

و Sympathy strikes, against a company by which workers are not directly employed,may be prohibited.

و General strikes may be forbidden by a public order.

و Certain categories of person may be forbidden to strike (airport personnel, healthpersonnel, teachers, police or firemen, etc.)

boycott A boycott is a refusal to buy, sell, or otherwise trade with an

individual or business who is generally believed by theparticipants in the boycott to be doing something morallywrong. Throughout history, workers have used tactics such asthe go-slow, sabotage, or just not turning up en-masse to gainmore control over the workplace environment, or simply have towork less. For example, an employee's refusal to violate law

133 International Labour Organization (1998). Declaration on Fundamental Principlesand Rights at Work. 86th Session: Geneva. Retrieved August 29, 2007.

134 United Nations General Assembly (1948). ‘Article 23’. Universal Declaration of Human Rights. Paris. Retrieved August 29, 2007.


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Labour Law Handbook (By Ojijo)or an employee's assertion of rights. Some labour lawexplicitly bans such activity, none explicitly allows it.

picketsPicketing is a tactic which is often used by workers during

strikes. They may congregate outside the business they arestriking against to make their presence felt, increase workerparticipation, and dissuade (or prevent) strike breakers fromentering the workplace. In many countries, this activity isrestricted by labour law, by more general law restrictingdemonstrations, or sometimes by injunctions on particularpickets. For example, labour law may restrict secondarypicketing (picketing a business not directly connected withthe dispute, such as a supplier of materials), or flyingpickets (mobile strikers who travel to join a picket). Theremay be laws against obstructing others from going about theirlawful business (scabbing, for example, is lawful); makingobstructive pickets illegal, and, in some countries, such asBritain, there may be court orders made from time to timeagainst pickets being in particular places or behaving inparticular ways (shouting abuse, for example).

employers liability The tort doctrine that imposes responsibility upon one person for

the failure of another, with whom the person has a specialrelationship (such as Parent and Child, employer and employee,or owner of vehicle and driver), to exercise such care as areasonably prudent person would use under similarcircumstances.

affirmative actionAffirmative action is the policy of consciously setting racial,

ethnic, religious, or other kinds of diversity as a goalwithin an organization. In order to meet this goal, anorganization may purposely select people from certain groupsthat are underrepresented, or have historically been oppressedor denied equal opportunities. In that application ofaffirmative action, individuals of one or more of theseminority backgrounds are preferred—ceteris paribus—over thosewho do not have such characteristics; such a preferentialscheme is sometimes effected through quotas, though this neednot necessarily be so.


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Labour Law Handbook (By Ojijo)equality is equityWhere two persons have an equal right, the property will be

divided equally. Thus Equity will presume joint owners to betenants in common unless the parties have expressly agreedotherwise. Equity also favours partition, if requested, ofjointly held property.

equal treatmentThe principle of equal treatment requires that all people, and in

the context of the workplace all workers, have the right toreceive the same treatment, and will not be discriminatedagainst on the basis of criteria such as age, disability,nationality, race and religion.

equal payEqual pay for women is an issue regarding pay inequality between

men and women. It is often introduced into domestic politicsin many first world countries as an economic problem thatneeds governmental intervention via regulation. The EqualRemuneration Convention requires its over 160 states partiesto have equal pay for men and women135.

emolumentsThe amount of income I receive from my employment. This income

includes my salary commissions, and benefits such as theprovision of a company car, use of a mobile phone and paymentsof expenses, such as travelling and subsistence costs.

garden leave clauseGarden leave (or gardening leave) describes the practice whereby

an employee who is leaving a job (having resigned or otherwisehad his or her employment terminated) is instructed to stayaway from work during the notice period, while still remainingon the payroll. This practice is often used to preventemployees from taking with them up-to-date (and perhapssensitive) information when they leave their current employer,especially when they are leaving to join a competitor.Employees continue to receive their normal pay during gardenleave and are covered by any contractual duties, such as

135 Gender Wage Gap Is Feminist Fiction by Arrah Nielsen, Independent Women's Forum, April 15, 2005


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Labour Law Handbook (By Ojijo)confidentiality agreements, until their notice period expires.The term can also be used when employees are sent home whilstsubject to disciplinary proceedings, when they are betweenprojects, or when, as a result of publicity, their presence atwork is considered counter-productive.

administrative leaveAdministrative leave is a temporary leave from a job assignment,

with pay and benefits intact. Generally, the term is reservedfor employees of non-business institutions such as schools,police, and hospitals. Usually, an employee is placed onadministrative leave when an allegation of misconduct is madeagainst an employee, either by a coworker, student or parent,an alleged victim or police officer. During the leave,employers may investigate the situation before determining anappropriate course of action. Other reasons that an employeemay be placed on administrative leave may include protectingsensitive information or resources or to remove an employeewho may be behaving disruptively pending assessment of asituation. Police officers are routinely placed onadministrative leave after a shooting incident while aninvestigation is conducted, without implying fault on the partof the officer.

co-determination or industrial democracyOriginating in Germany, some form of co-determination (or

Mitbestimmung) procedure is practised in countries acrosscontinental Europe, such as Holland and the Czech Republic, aswell as Scandinavian countries (e.g. Sweden). This involvesthe rights of workers to be represented on the boards ofcompanies for whom they work. The German model involves halfthe board of directors being appointed by the company tradeunion.

non-compete clause or covenant not to competeA non-compete clause (often NCC), or covenant not to compete

(CNC), is a term used in contract law under which one party(usually an employee) agrees not to pursue a similarprofession or trade in competition against another party(usually the employer). As a contract provision, a CNC isbound by traditional contract requirements including theconsideration doctrine. The use of such clauses is premised on


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Labour Law Handbook (By Ojijo)the possibility that upon their termination or resignation, anemployee might begin working for a competitor or starting abusiness, and gain competitive advantage by abusingconfidential information about their former employer'soperations or trade secrets, or sensitive information such ascustomer/client lists, business practices, upcoming products,and marketing plans. 136 However, an over-broad CNC may preventan employee from working elsewhere at all. English Common Laworiginally held any such constraint to be unenforceable as amatter of public policy. Contemporary case law permitsexceptions, but generally will only enforce CNCs to the extentnecessary to protect the employer. Most jurisdictions in whichsuch contracts have been examined by the courts have deemedCNCs to be legally binding so long as the clause containsreasonable limitations as to the geographical area and timeperiod in which an employee of a company may not compete.

golden hello/golden handshake A Golden hello is a bonus offered by hiring firms if the hired

joins the company from a rival firm. It is very similar to thetraditional joining bonus offered by firms but will be offeredusually for rival firm employees luring them into a firm.Typically, ‘Golden hellos’ are offered only to high-rankingexecutives by major corporations and may entail a valuemeasured in millions of dollars.

collective bargainingTrade agreement negotiation between an employer and a person(s)

representative of a larger unit of employees, to governhiring, work, pay and dispute resolution.

collective bargaining agreementA contract on hiring, working conditions and dispute resolution

between an employer and a union, the latter representingemployees of a defined group.

compassionate care leavePaid or unpaid leave to care or support a gravely ill family

member.

136 [2001] UKHL 22


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Labour Law Handbook (By Ojijo)minimum wageA minimum wage is the lowest hourly, daily or monthly

remuneration that employers may legally pay to workers.Equivalently, it is the lowest wage at which workers may selltheir labor. Although minimum wage laws are in effect in manyjurisdictions, differences of opinion exist about the benefitsand drawbacks of a minimum wage. Supporters of the minimumwage say that it increases the standard of living of workers,reduces poverty, and forces businesses to be more efficient.Opponents say that if it is high enough to be effective, itincreases unemployment, particularly among workers with verylow productivity due to inexperience or handicap, therebyharming less skilled workers and possibly excluding somegroups from the labor market; additionally it is lesseffective and more damaging to businesses than other methodsof reducing poverty. 137

heart attack standardA finding or allegation that conditions of employment are so

unusual or extraordinary conditions as to have the potentialto cause mental disorder or a heart attack.

hostile work environmentA pattern of ongoing and persistent harassment severe enough to

alter the conditions of employment.wallace damagesIncreased damage award in a wrongful dismissal case because of

the manner in which the dismissal was handled by the employer.insubordinationWillful failure to obey a supervisor's lawful orders.workers' compensationA public benefit scheme in which qualified workers who are

injured in the workplace, receive compensation, commensuratewith their degree of injury, regardless of fault.

at will jurisdiction

137 Black, John (2003-09-18). Oxford Dictionary of Economics. Oxford University Press, USA. p. 300.


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Labour Law Handbook (By Ojijo)This means that, in the absence of an express contract, agreement

or policy to the contrary, the employee is free to leavehis/her job on any given day, and the employer is free to hireand fire the employee at any time and for virtually any reason-- whether fair or not -- or for no reason at all. This “atwill” relationship, however, does not permit an employer toterminate employment for an illegal reason. Many of theprotections against these illegal actions are discussed below.

right-to-work lawA "right-to-work" law is a statute in the United States that

prohibits union security agreements, or agreements betweenlabor unions and employers, that govern the extent to which anestablished union can require employees' membership, paymentof union dues, or fees as a condition of employment, eitherbefore or after hiring. "Right-to-work" laws do not, as theshort phrase might suggest, aim to provide a general guaranteeof employment to people seeking work, but rather are agovernment regulation of the contractual agreements betweenemployers and labor unions that prevents them from excludingnon-union workers, or requiring employees to pay a fee tounions that have negotiated the labor contract all theemployees work under.

Right To Safe Work Environment

Occupational safety and health is an area concerned withprotecting the safety, health and welfare of people engaged inwork or employment. The goals of occupational safety andhealth programs include to foster a safe and healthy workenvironment.138 The rights of employees are protected bystatute, as well as by common law, through the actions forbreach of contract, and intentional and negligent unlawfulacts.

Legal rights within workers rights dialogue relate to thepreventative, punitive and compensatory effects of laws thatprotect worker's safety and health. The legal provisions also

138 Concha-Barrientos, M., Imel, N.D., Driscoll, T., Steenland, N.K., Punnett, L., Fingerhut, M.A.,Prüss-Üstün, A., Leigh, J., Tak, S.W., Corvalàn, C. (2004). Selected occupational risk factors. In M. Ezzati, A.D. Lopez, A. Rodgers & C.J.L. Murray (Eds.), Comparative Quantification of Health Risks. Geneva: World Health Organization.


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Labour Law Handbook (By Ojijo)cover employees injury and illness related costs, includingmedical care, sick leave and disability benefit costs.

Moral obligations would involve the protection of employee'slives and health. This is also related to the economicargument, or basis, which is dependent on the worker beinghealthy to be productive to the companies.

Health and safety regulations set forth standards that employersmust follow to protect workers from exposure to chemicals andother toxic substances; unsafe noise levels; unsafe workpractices; and unsafe heat, cold or ventilation conditions.The regulations may require protective clothing for certaintypes of work and may also require employers to providecertain medical tests (e.g. hearing tests) at company expense.

Right To Withdraw From Any Dangerous Work

The employee has a legal right to refuse to work in a situationin which they would be exposed to the hazard. If the workerbelieve working conditions are unsafe or unhealthful, werecommend that the worker bring the conditions to theemployer's attention, if possible. An employee may file acomplaint with OSHA concerning a hazardous working conditionat any time. However, a worker should not leave the worksitemerely because they have filed a complaint unless thecondition clearly presents a risk of death or serious physicalharm, and there is not sufficient time for OSHA to inspect,and, where possible, the worker has brought the condition tothe attention of the employer. The right to refuse to do atask is protected if the employee has asked the employer toeliminate the danger and the employer failed; and hence, therefusal to work is in "good faith", that is, genuine beliefthat an imminent danger exists; and a reasonable person wouldagree that there is a real danger of death or serious injury;and finally, there isn't enough time, due to the urgency ofthe hazard, to get it corrected through regular enforcementchannels, such as requesting an OSHA inspection.

Right To Information Pertaining To The Work

Workers have a legal right to receive information and trainingabout hazards, methods to prevent harm, and the OSHA standardsthat apply to their workplace. The training must be in alanguage they can understand. Further, they have a right to


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Labour Law Handbook (By Ojijo)get copies of test results done to find hazards in theworkplace; review records of work-related injuries andillnesses; and also get copies of their medical records.

Right To Compensation For Injury During Work

An employee must be compensated by his or her employee in theevent that as a result of the injury he or she is unable towork anymore or is incapacitated for at least threeconsecutive days from earning full wages at the work at whichhe or she was employed.

fair remuneration The employer should fairly pay workers for their labour, and

equally pay workers of different sex equal pay for equal workdone, without discrimination.


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EMPLOYMENT BENEFITS

Employee benefits Employee benefits and (especially in British English) benefits in

kind (also called fringe benefits, perquisites, or perks)include various types of non-wage compensation provided toemployees in addition to their normal wages or salaries. Ininstances where an employee exchanges (cash) wages for someother form of benefit is generally referred to as a 'salarypackaging' or 'salary exchange' arrangement. In mostcountries, most kinds of employee benefits are taxable to atleast some degree.

Examples of these benefits include: housing (employer-provided oremployer-paid), group insurance (health, dental, life etc.),disability income protection, retirement benefits, daycare,tuition reimbursement, sick leave, vacation (paid and non-paid), social security, profit sharing, funding of education,and other specialized benefits.

The purpose of employee benefits is to increase the economicsecurity of staff members, and in doing so, improve workerretention across the organization. As such, it is onecomponent of reward management.

The term perks is often used colloquially to refer to thosebenefits of a more discretionary nature. Often, perks aregiven to employees who are doing notably well and/or haveseniority. Common perks are take-home vehicles, hotel stays,free refreshments, leisure activities on work time (golf,etc.), stationery, allowances for lunch, and—when multiplechoices exist—first choice of such things as job assignmentsand vacation scheduling. They may also be given first chanceat job promotions when vacancies exist.

corporate action A corporate action is an event initiated by a public company that

affects the securities (equity or debt) issued by the company.Some corporate actions such as a dividend (for equitysecurities) or coupon payment (for debt securities) may have adirect financial impact on the shareholders or bondholders;another example is a call (early redemption) of a debtsecurity. Other corporate actions such as stock split may have


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Labour Law Handbook (By Ojijo)an indirect impact, as the increased liquidity of shares maycause the price of the stock to decrease. Some corporateactions such as name change have no direct financial impact onthe shareholders. Corporate actions are typically agreed uponby a company's board of directors and authorized by theshareholders. Some examples are stock splits, dividends,mergers and acquisitions, rights issues and spin offs.

Purpose Of Corporate ActionsThe primary reasons for companies to use corporate actions are:¯ Return profits to shareholders: ¯ Influence the share price: ¯ Corporate Restructuring:

Return profits to shareholders: Cash dividends are a classic example where a public company

declares a dividend to be paid on each outstanding share.Bonus is another case where the shareholder is rewarded. In astricter sense the Bonus issue should not impact the shareprice but in reality, in rare cases, it does and results in anoverall increase in value.

Influence the share price: If the price of a stock is too high or too low, the liquidity of

the stock suffers. Stocks priced too high will not beaffordable to all investors and stocks priced too low may bede-listed. Corporate actions such as stock splits or reversestock splits increase or decrease the number of outstandingshares to decrease or increase the stock price respectively.Buybacks are another example of influencing the stock pricewhere a corporation buys back shares from the market in anattempt to reduce the number of outstanding shares therebyincreasing the price.

Corporate Restructuring: Corporations re-structure in order to increase their

profitability. Mergers are an example of a corporate actionwhere two companies that are competitive or complementary cometogether to increase profitability. Spinoffs are an example of


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Labour Law Handbook (By Ojijo)a corporate action where a company breaks itself up in orderto focus on its core competencies.

Impact Of Corporate ActionsAs a beneficial owner, the impact of a corporate event (action)

is usually measured in terms of its impact to securitiesand/or cash positions; consequently corporate action eventscan be categorized as follows:

Benefits: The events that result in an increase to the positionholder’s securities or cash position, without altering theunderlying security; example can be cited of, a bonus issue,which is a Mandatory With Options Action/Event.

Re-Organisations: The events re-shape or re-structure thebeneficial owners underlying securities position, at times,also allowing a combination of cash pay out. Example can becited of Equity Restructure, Conversion, Subscription, etc.

Types Of Corporate ActionsCorporate actions are classified as voluntary, mandatory and

mandatory with choice corporate actions.Mandatory Corporate Action: A mandatory corporate action is an event initiated by the

corporation by the board of directors that affects allshareholders. Participation of shareholders is mandatory forthese corporate actions. An example of a mandatory corporateaction is cash dividend. All holders are entitled to receivethe dividend payments, and a shareholder does not need to doanything to get the dividend. Other examples of mandatorycorporate actions include stock splits, mergers, pre-refunding, return of capital, bonus issue, asset ID change,pari-passu and spinoffs. Strictly speaking the word mandatoryis not appropriate because the share holder person doesn't doanything. In all the cases cited above the shareholder is justa passive beneficiary of these actions. There is nothing theShare holder has to do or does in a Mandatory CorporateAction.

Voluntary Corporate Action: A voluntary corporate action is an action where the shareholders

elect to participate in the action. A response is required by


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Labour Law Handbook (By Ojijo)the corporation to process the action. An example of avoluntary corporate action is a tender offer. A corporationmay request share holders to tender their shares at a pre-determined price. The shareholder may or may not participatein the tender offer. Shareholders send their responses to thecorporation's agents, and the corporation will send theproceeds of the action to the shareholders who elect toparticipate.

Other types of Voluntary actions include rights issue, makingbuyback offers to the share holders while delisting thecompany from the stock exchange etc.

Mandatory with Choice Corporate Action: This corporate action is a mandatory corporate action where share

holders are given a chance to choose among several options. Anexample is cash or stock dividend option with one of theoptions as default. Share holders may or may not submit theirelections. In case a share holder does not submit theelection, the default option will be applied.

Mandatory leave:, military leave, workers’ compensation, and juryduty

In addition to employee leave protected by the FMLA and ADA, manystates have similar laws and workers’ comp laws. Employersalso are required by federal laws to grant leave for militaryservice under the Uniformed Services Employment andReemployment Rights Act (USERRA), and as a religiousaccommodation under Title VII of the Civil Rights Act of 1964.

Some states also require maternity leave and/or paternity leavefor employee who need time off for the birth or adoption of achild. State and federal employment laws generally requiresemployers to give employees leave when they are called toserve on a jury.

Voluntary (non-mandatory) leaveEmployers also offer many types of employee leave that aren’t

required by law, although some may be required by a collectivebargaining agreement with a labor union. Non-mandatory typesof employee leave include vacation, personal days, holidays,sick leave, maternity leave, paternity leave, adoption leave,disability leave, and paid time off.


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Labour Law Handbook (By Ojijo)Benefits Complete Compliance – comprehensive online reference

service, manual, and monthly update on employment laws andregulations affecting employee benefits

Sick leaveAlthough San Francisco is the only city that has passed

legislation requiring mandatory sick leave, several stateshave considered similar measures. One of the benefits foremployers that provide paid sick leave is that employees areless likely to come to work when they are sick if they willnot lose pay. Encouraging sick employees to stay home can helpreduce the chances of germs spreading at work, keeping therest of the employers workplace healthier.

paternity leave, maternity leaveEmployers can give maternity leave that’s more generous than the

FMLA’s minimum requirement, but beware of giving better leaveto new mothers as compared to new fathers and employees withother health problems. That could cause resentment and a sexdiscrimination charge from a man.

annual leaveAnnual leave (also known as holiday pay) allows an employee to be

paid while having time off from work.All employees (except for casual employees) get paid annual

leave.Full-time and part-time employees get 4 weeks of annual leave,

based on their ordinary hours of work.Annual leave does not accumulate when the employee is on:¯ unpaid annual leave

¯ unpaid sick/carer's leave

¯ unpaid parental leave.

Employee LeaveMany employers give employees paid leave, such as vacation, paid

time off, and sick leave as part of their benefits package toallow employees to recharge their batteries and to deal withlife’s little downturns. In addition, covered employers arerequired to grant employees job-protected leave underemployment laws such as the Family and Medical Leave Act


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Labour Law Handbook (By Ojijo)(FMLA) and workers’ comp laws and possibly as an accommodationunder the Americans with Disabilities Act (ADA). Someemployers also give employees paid time off for holidays suchas Christmas.

sick leaveSick leave (or paid sick days or sick pay) is time off from work

that workers can use to stay home to address their health andsafety needs without losing pay. Some workplaces offer paidsick time as a matter of workplace policy, and in fewjurisdictions it is codified into law.

Parental leave or family leave Parental leave or family leave is an employee benefit available

in almost all countries that provides paid time off work tocare for a child or make arrangements for the child's welfare.The terms "parental leave" and "family leave" includematernity, paternity, and adoption leave. Often, the minimumbenefits are stipulated by law.

sexual harassmentSexual harassment is bullying or coercion of a sexual nature, or

the unwelcome or inappropriate promise of rewards in exchangefor sexual favors.

Employment discrimination Employment discrimination is a form of discrimination based on

race, sex, religion, national origin, physical or mentaldisability, and age by employers.


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EMPLOYEE TAXES

Payroll taxes Payroll taxes are taxes imposed on employers or employees, and

are usually calculated as a percentage of the salaries thatemployers pay their staff. Payroll taxes generally fall intotwo categories: deductions from an employee’s wages, and taxespaid by the employer based on the employee's wages. The firstkind are taxes that employers are required to withhold fromemployees' wages, also known as withholding tax, pay-as-you-earn tax (PAYE), or pay-as-you-go tax (PAYG) and oftencovering advance payment of income tax, social securitycontributions, and various insurances (e.g., unemployment anddisability). The second kind is a tax that is paid from theemployer's own funds and that is directly related to employinga worker. These can consist of fixed charges or beproportionally linked to an employee's pay. The charges paidby the employer usually cover the employer's funding of thesocial security system, and other insurance programs. Theeconomic burden of the payroll tax falls on the worker,regardless of whether the tax is remitted by the employer orthe employee, as the employers’ share of payroll taxes ispassed on to employees in the form of lower wages than wouldotherwise be paid.

pay as you earn tax, paye taxA pay-as-you-earn tax (PAYE) is a withholding tax on income

payments to employees. Amounts withheld are treated as advancepayments of income tax due. They are refundable to the extentthey exceed tax as determined on tax returns. PAYE may includewithholding the employee portion of insurance contributions orsimilar social benefit taxes. In most countries, they aredetermined by employers but subject to government review. PAYEis deducted from each paycheck by the employer and must beremitted promptly to the government. Most countries refer toincome tax withholding by other terms, including pay-as-you-gotax.

Social Security Taxes and Medicare TaxesEmployers generally must withhold part of social security and

Medicare taxes from employees' wages and you pay a matching


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Labour Law Handbook (By Ojijo)amount yourself.

Medicare TaxEmployers are responsible for withholding Medicare Tax on an

employee's wages and compensation that exceeds a thresholdamount based on the employee’s filing status.

withholding tax A withholding tax, also called a retention tax, is a government

requirement for the payer of an item of income to withhold ordeduct tax from the payment, and pay that tax to thegovernment. In most jurisdictions, withholding tax applies toemployment income. Many jurisdictions also require withholdingtax on payments of interest or dividends. In mostjurisdictions, there are additional withholding taxobligations if the recipient of the income is resident in adifferent jurisdiction, and in those circumstances withholdingtax sometimes applies to royalties, rent or even the sale ofreal estate. Governments use withholding tax as a means tocombat tax evasion, and sometimes impose additionalwithholding tax requirements if the recipient has beendelinquent in filing tax returns, or in industries where taxevasion is perceived to be common.

Typically the withholding tax is treated as a payment on accountof the recipient's final tax liability. It may be refunded ifit is determined, when a tax return is filed, that therecipient's tax liability to the government which received thewithholding tax is less than the tax withheld, or additionaltax may be due if it is determined that the recipient's taxliability is more than the withholding tax. In some cases thewithholding tax is treated as discharging the recipient's taxliability, and no tax return or additional tax is required.

The amount of withholding tax on income payments other thanemployment income is usually a fixed percentage. In the caseof employment income the amount of withholding tax is oftenbased on an estimate of the employee's final tax liability,determined either by the employee or by the government.

Employees Provident FundEmployees Provident Fund is a compulsory savings scheme in

Malaysia. Its primary aim is to provide a measure of security


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Labour Law Handbook (By Ojijo)for old age retirement to its members. It also providessupplementary benefits to members to utilize part of theirsavings for house ownership and other withdrawal schemes.

Wage withholding, payroll taxMost developed countries operate a wage withholding tax system.

In some countries, subnational governments require wagewithholding so that both national and subnational taxes may bewithheld. In the U.S., Canada, and Switzerland the federal andmost state, provincial or cantonal governments, as well assome local governments, require such withholding for incometaxes on payments by employers to employees. Income tax forthe individual for the year is generally determined uponfiling a tax return after the end of the year.

The amount withheld and paid by the employer to the government isapplied as a prepayment of income taxes and is refundable ifit exceeds the income tax liability determined on filing thetax return. In such systems, the employee generally must makea representation to the employer regarding factors that wouldinfluence the amount withheld. Generally, the tax authoritiespublish guidelines for employers to use in determining theamount of income tax to withhold from wages.

Other domestic withholding taesSome systems require that income taxes be withheld from certain

payments other than wages made to domestic persons. The UKrequires withholding of 20% tax on payments of interest bybanks and building societies to individuals. A similarrequirement is imposed in Ireland for deposit interest. TheU.S. requires payers of dividends, interest, and other"reportable payments" to individuals to withhold tax on suchpayments in certain circumstances.

International withholding taxesMost countries require that payers of certain amounts, especially

interest, dividends, and royalties, to foreign payees withholdincome tax from such payment and pay it to the government.Payments of rent may be subject to withholding tax or may betaxed as business income. The amounts may vary by type ofincome. A few jurisdictions treat fees paid for technicalconsulting services as royalties subject to withholding of


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Labour Law Handbook (By Ojijo)tax. Income tax treaties may reduce the amount of tax forparticular types of income paid from one country to residentsof the other country.

Social insurance taxes (social security)Many countries (and/or subdivisions thereof) have social

insurance systems that require payment of taxes for retirementannuities and medical coverage for retirees. Most such systemsrequire that employers pay a tax to cover such benefits. Somesystems also require that employees pay such taxes.

Where the employees are required to pay the tax, it is generallywithheld from the payment of wages and paid by the employer tothe government. Social insurance tax rates may be differentfor employers than for employees. Most systems provide anupper limit on the amount of wages subject to social insurancetaxes.

Remittance to governmentMost systems require that taxes withheld must be remitted within

specified time limits, which time limits may vary with thetotal amount so held in trust. Remittance by electronic fundstransfer is often required.

Penalties for failure to remit withheld taxes to the governmentcan be severe. Some such penalties are increased for longerperiods of nonremittance.

Reporting Nearly all systems imposing withholding tax requirements also

require reporting of amounts withheld in a specified manner.Copies of such reporting are usually required to be providedto both the person on whom the tax is imposed and to thelevying government. Reporting is generally required annuallyfor amounts withheld with respect to wages. Reportingrequirements for other payments vary, with some jurisdictionsrequiring annual reporting and others requiring reportingwithin a specified period after the withholding occurs.


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expatriate taxationAn expatriation tax or emigration tax is a tax on persons who

cease to be tax resident in a country. This often takes theform of a capital gains tax against unrealised gainattributable to the period in which the taxpayer was a taxresident of the country in question. In most cases,expatriation tax is assessed upon change of domicile orhabitual residence; in the United States, which is one of thefew countries to tax its overseas citizens, the tax is appliedupon renunciation of citizenship instead.

Tax exemption Tax exemption refers to a monetary exemption which reduces

taxable income. Tax exempt status can provide complete relieffrom taxes, reduced rates, or tax on only a portion of items.Examples include exemption of charitable organizations fromproperty taxes and income taxes, veterans, and certain cross-border or multi-jurisdictional scenarios.

Tax exemption generally refers to a statutory exception to ageneral rule rather than the mere absence of taxation inparticular circumstances, otherwise known as an exclusion. Taxexemption also refers to removal from taxation of a particularitem rather than a deduction.

tax exempt income , Tax-Free Income, exempt income, tax-freeremuneration

It's true! This page contains updated information about manyforms of tax-free income available to the average taxpayer.And yes, this is all legal; tax law does not allow the IRS totax the income and benefits discussed here.

Examples of Tax-Free IncomeAid to Families with Dependent Children (AFDC)Adoption expense reimbursements for qualifying expensesDamages for physical injury (other than punitive)Death paymentsDividends of life insurance


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Labour Law Handbook (By Ojijo)Welfare benefits (including TANF) and food stampsSupplemental Security Income (SSI)Accident and/or health Insurance benefitsWorker's Compensation (and FECA payments)Disability Benefits or Disability Pension paymentsChild SupportCompensatory (but not punitive) damages awarded in court for

physical injury or physical sicknessGifts, Bequests, and Inheritances up to a certain valueDealer/manufacturer cash rebatesMeals and lodging when required by your jobLong-term Care Insurance paymentsQualified scholarships and grantsCredit card rewards and points (noncash prizes less than $600 or

tied to spending habits)Frequent flyer milesQualified canceled mortgage debtMilitary AllowancesVeterans' BenefitsMedical Savings Account withdrawalsLife insurance benefitsAccelerated death benefitsReimbursements for theft or casualty lossDisaster relief grantsUp to $99,200 of foreign earned income (for 2014)Sickness and Injury PaymentsFederal income tax refundsInterest on tax-free securitiesInterest on EE/I bonds redeemed for qualified higher education

expensesPayments to the beneficiary of a deceased employee


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Labour Law Handbook (By Ojijo)Relocation payments or payments in lieu of worker’s compensationRental allowance of clergymanSocial security benefits (if it is your only form of income)Temporary Assistance for Needy Families (TANF) Please note that the above list is not definitive or all-

inclusive. There are other forms of tax-free income available.work permits A work permit is generally a legal authorization from a country's

government which allows a non-citizen to take a job withinthat country. It may also be a permit given to minors allowingthem to work legally under child labor laws. Within anindustry, a work permit may be required to execute certainfunctions within a factory outside normal operational tasks(such as maintenance tasks) - in some places they might becalled Permit to Work (PTW).

Tax avoidance Tax avoidance is the legal usage of the tax regime to one's own

advantage, and generally the detriment of society, to reducethe amount of tax that is payable by means that are within thelaw. Tax sheltering is very similar, and tax havens arejurisdictions which facilitate reduced taxes. The term taxmitigation is sometimes used; its original use was by taxadvisers as an alternative to the pejorative term tax evasion."Tax aggressive" strategies fall into the grey area betweencommonplace and well-accepted tax avoidance (such aspurchasing municipal bonds in the United States) and evasion.However, the uses of these terms vary.

Laws known as a General Anti-Avoidance Rule (GAAR) statutes whichprohibit "tax aggressive" avoidance have been passed inseveral developed countries including Canada, Australia, NewZealand, South Africa, Norway and Hong Kong. In addition,judicial doctrines have accomplished the similar purpose,notably in the United States through the "business purpose"and "economic substance" doctrines established in Gregory v.Helvering and in the UK through the Ramsay case. Though thespecifics may vary according to jurisdiction, these rulesinvalidate tax avoidance which is technically legal but notfor a business purpose or in violation of the spirit of the Lawpronto Training Manuals

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Labour Law Handbook (By Ojijo)tax code. Related terms for tax avoidance include tax planningand tax sheltering.

The term avoidance has also been used in the tax regulations[examples and source needed] of some jurisdictions todistinguish tax avoidance foreseen by the legislators from taxavoidance which exploits loopholes in the law such as like-kind exchanges. The United States Supreme Court has statedthat "The legal right of an individual to decrease the amountof what would otherwise be his taxes or altogether avoid them,by means which the law permits, cannot be doubted."

Tax evasionTax evasion, on the other hand, is the general term for efforts

by individuals, corporations, trusts and other entities toevade taxes by illegal means. Both tax avoidance and evasioncan be viewed as forms of tax noncompliance, as they describea range of activities that are unfavorable to a state's taxsystem.


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RETIREMENT BENEFITS

Retirement Retirement is the point where a person stops employment

completely. A person may also semi-retire by reducing workhours.

Many people choose to retire when they are eligible for privateor public pension benefits, although some are forced to retirewhen physical conditions no longer allow the person to workany longer (by illness or accident) or as a result oflegislation concerning their position. In most countries, theidea of retirement is of recent origin, being introducedduring the late 19th and early 20th centuries. Previously, lowlife expectancy and the absence of pension arrangements meantthat most workers continued to work until death. Germany wasthe first country to introduce retirement, in 1889.

Nowadays most developed countries have systems to providepensions on retirement in old age, which may be sponsored byemployers and/or the state. In many poorer countries, supportfor the old is still mainly provided through the family.Today, retirement with a pension is considered a right of theworker in many societies, and hard ideological, social,cultural and political battles have been fought over whetherthis is a right. In many western countries this right ismentioned in national constitutions.

defined contribution plan defined contribution plan is a type of retirement plan in which

the employer, employee or both make contributions on a regularbasis. Individual accounts are set up for participants andbenefits are based on the amounts credited to these accounts(through employer contributions and, if applicable, employeecontributions) plus any investment earnings on the money inthe account. Only employer contributions to the account areguaranteed, not the future benefits. In defined contributionplans, future benefits fluctuate on the basis of investmentearnings. The most common type of defined contribution plan isa savings and thrift plan. Under this type of plan, theemployee contributes a predetermined portion of his or her


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Labour Law Handbook (By Ojijo)earnings (usually pretax) to an individual account, all orpart of which is matched by the employer.

pension A pension is a fixed sum to be paid regularly to a person,

typically following retirement from service. There are manydifferent types of pensions, including defined benefit plans,defined contribution plans, as well as several others.Pensions should not be confused with severance pay; the formeris paid in regular installments, while the latter is paid inone lump sum.

The terms retirement plan and superannuation tend to refer to apension granted upon retirement of the individual. Retirementplans may be set up by employers, insurance companies, thegovernment or other institutions such as employer associationsor trade unions. Called retirement plans in the United States,they are commonly known as pension schemes in the UnitedKingdom and Ireland and superannuation plans (or super) inAustralia and New Zealand. Retirement pensions are typicallyin the form of a guaranteed life annuity, thus insuringagainst the risk of longevity.

A pension created by an employer for the benefit of an employeeis commonly referred to as an occupational or employerpension. Labor unions, the government, or other organizationsmay also fund pensions. Occupational pensions are a form ofdeferred compensation, usually advantageous to employee andemployer for tax reasons. Many pensions also contain anadditional insurance aspect, since they often will paybenefits to survivors or disabled beneficiaries. Othervehicles (certain lottery payouts, for example, or an annuity)may provide a similar stream of payments.

The common use of the term pension is to describe the payments aperson receives upon retirement, usually under pre-determinedlegal or contractual terms. A recipient of a retirementpension is known as a pensioner or retiree.

Employment-based pensionsA retirement plan is an arrangement to provide people with an

income during retirement when they are no longer earning asteady income from employment. Often retirement plans require


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Labour Law Handbook (By Ojijo)both the employer and employee to contribute money to a fundduring their employment in order to receive defined benefitsupon retirement. It is a tax deferred savings vehicle thatallows for the tax-free accumulation of a fund for later useas a retirement income. Funding can be provided in other ways,such as from labor unions, government agencies, or self-fundedschemes. Pension plans are therefore a form of "deferredcompensation". A SSAS is a type of employment-based Pension inthe UK.

Some countries also grant pensions to military veterans. Militarypensions are overseen by the government; an example of astanding agency is the United States Department of VeteransAffairs. Ad hoc committees may also be formed to investigatespecific tasks, such as the U.S. Commission on Veterans'Pensions (commonly known as the "Bradley Commission") in 1955–56. Pensions may extend past the death of the veteran himself,continuing to be paid to the widow; see, for example, the caseof Esther Sumner Damon, who was the last surviving AmericanRevolutionary War widow at her death in 1906.

Social and state pensionsMany countries have created funds for their citizens and

residents to provide income when they retire (or in some casesbecome disabled). Typically this requires payments throughoutthe citizen's working life in order to qualify for benefitslater on. A basic state pension is a "contribution based"benefit, and depends on an individual's contribution history.For examples, see National Insurance in the UK, or SocialSecurity in the United States of America.

Many countries have also put in place a "social pension". Theseare regular, tax-funded non-contributory cash transfers paidto older people. Over 80 countries have social pensions. Someare universal benefits, given to all older people regardlessof income, assets or employment record. Examples of universalpensions include New Zealand Superannuation and the BasicRetirement Pension of Mauritius. Most social pensions, though,are means-tested, such as Supplemental Security Income in theUnited States of America or the "older person's grant" inSouth Africa.

Disability pension


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Labour Law Handbook (By Ojijo)Some pension plans will provide for members in the event they

suffer a disability. This may take the form of early entryinto a retirement plan for a disabled member below the normalretirement age.

Benefits Retirement plans may be classified as defined benefit or defined

contribution according to how the benefits are determined. Adefined benefit plan guarantees a certain payout atretirement, according to a fixed formula which usually dependson the member's salary and the number of years' membership inthe plan. A defined contribution plan will provide a payout atretirement that is dependent upon the amount of moneycontributed and the performance of the investment vehiclesutilized.

Some types of retirement plans, such as cash balance plans,combine features of both defined benefit and definedcontribution plans. They are often referred to as hybridplans. Such plan designs have become increasingly popular inthe US since the 1990s. Examples include Cash Balance andPension Equity plans.

Defined benefit pension planA traditional defined benefit (DB) plan is a plan in which the

benefit on retirement is determined by a set formula, ratherthan depending on investment returns. In the US, 26 U.S.C. §414(j) specifies a defined benefit plan to be any pension planthat is not a defined contribution plan (see below) where adefined contribution plan is any plan with individualaccounts. A traditional pension plan that defines a benefitfor an employee upon that employee's retirement is a definedbenefit plan. In the U.S., corporate defined benefit plans,along with many other types of defined benefit plans, aregoverned by the Employee Retirement Income Security Act of1974 (ERISA).

Traditionally, retirement plans have been administered byinstitutions which exist specifically for that purpose, bylarge businesses, or, for government workers, by thegovernment itself. A traditional form of defined benefit planis the final salary plan, under which the pension paid isequal to the number of years worked, multiplied by the


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Labour Law Handbook (By Ojijo)member's salary at retirement, multiplied by a factor known asthe accrual rate. The final accrued amount is available as amonthly pension or a lump sum, but usually monthly.

The benefit in a defined benefit pension plan is determined by aformula that can incorporate the employee's pay, years ofemployment, age at retirement, and other factors. A simpleexample is a Dollars Times Service plan design that provides acertain amount per month based on the time an employee worksfor a company. For example, a plan offering $100 a month peryear of service would provide $3,000 per month to a retireewith 30 years of service. While this type of plan is popularamong unionized workers, Final Average Pay (FAP) remains themost common type of defined benefit plan offered in the UnitedStates. In FAP plans, the average salary over the final yearsof an employee's career determines the benefit amount.

Averaging salary over a number of years means that thecalculation is averaging different dollars. For example, ifsalary is averaged over five years, and retirement is in 2009,then salary in 2004 dollars is averaged with salary in 2005dollars, etc., with 2004 dollars being worth more than thedollars of succeeding years. The pension is then paid in firstyear of retirement dollars, in this example 2009 dollars, withthe lowest value of any dollars in the calculation. Thusinflation in the salary averaging years has a considerableimpact on purchasing power and cost, both being reducedequally by inflation

This effect of inflation can be eliminated by converting salariesin the averaging years to first year of retirement dollars,and then averaging.

In the United Kingdom, benefits are typically indexed forinflation (known as Retail Prices Index (RPI)) as required bylaw for registered pension plans. Inflation during anemployee's retirement affects the purchasing power of thepension; the higher the inflation rate, the lower thepurchasing power of a fixed annual pension. This effect can bemitigated by providing annual increases to the pension at therate of inflation (usually capped, for instance at 5% in anygiven year). This method is advantageous for the employee


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Labour Law Handbook (By Ojijo)since it stabilizes the purchasing power of pensions to someextent.

If the pension plan allows for early retirement, payments areoften reduced to recognize that the retirees will receive thepayouts for longer periods of time. In the United States,under the Employee Retirement Income Security Act of 1974, anyreduction factor less than or equal to the actuarial earlyretirement reduction factor is acceptable.

Many DB plans include early retirement provisions to encourageemployees to retire early, before the attainment of normalretirement age (usually age 65). Companies would rather hireyounger employees at lower wages. Some of those provisionscome in the form of additional temporary or supplementalbenefits, which are payable to a certain age, usually beforeattaining normal retirement age.

Defined benefit plans may be either funded or unfunded.unfunded defined benefit pension In an unfunded defined benefit pension, no assets are set aside

and the benefits are paid for by the employer or other pensionsponsor as and when they are paid. Pension arrangementsprovided by the state in most countries in the world areunfunded, with benefits paid directly from current workers'contributions and taxes. This method of financing is known asPay-as-you-go (PAYGO or PAYG). The social security systems ofmany European countries are unfunded,[14] having benefits paiddirectly out of current taxes and social securitycontributions, although several countries have hybrid systemswhich are partially funded. Spain set up the Social SecurityReserve Fund and France set up the Pensions Reserve Fund; inCanada the wage-based retirement plan (CPP) is funded, withassets managed by the CPP Investment Board while the U.S.Social Security system is funded by investment in special U.S.Treasury Bonds.

funded defined benefit pension In a funded plan, contributions from the employer, and sometimes

also from plan members, are invested in a fund towards meetingthe benefits. All plans must be funded in some way, even ifthey are pay-as-you-go, so this type of plan is more


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Labour Law Handbook (By Ojijo)accurately known as pre-funded. The future returns on theinvestments, and the future benefits to be paid, are not knownin advance, so there is no guarantee that a given level ofcontributions will be enough to meet the benefits. Typically,the contributions to be paid are regularly reviewed in avaluation of the plan's assets and liabilities, carried out byan actuary to ensure that the pension fund will meet futurepayment obligations. This means that in a defined benefitpension, investment risk and investment rewards are typicallyassumed by the sponsor/employer and not by the individual. Ifa plan is not well-funded, the plan sponsor may not have thefinancial resources to continue funding the plan. In manycountries, such as the USA, the UK and Australia, most privatedefined benefit plans are funded, because governments thereprovide tax incentives to funded plans (in Australia they aremandatory). In the United States, non-church-based privateemployers must pay an insurance-type premium to the PensionBenefit Guaranty Corporation(PBGC), a government agency whoserole is to encourage the continuation and maintenance ofvoluntary private pension plans and provide timely anduninterrupted payment of pension benefits. When the PBGC stepsin and takes over a pension plan, it provides payment forpension benefits up to certain maximum amounts, which areindexed for inflation.

Defined contribution planIn a defined contribution plan, contributions are paid into an

individual account for each member. The contributions areinvested, for example in the stock market, and the returns onthe investment (which may be positive or negative) arecredited to the individual's account. On retirement, themember's account is used to provide retirement benefits,sometimes through the purchase of an annuity which thenprovides a regular income. Defined contribution plans havebecome widespread all over the world in recent years, and arenow the dominant form of plan in the private sector in manycountries. For example, the number of defined benefit plans inthe US has been steadily declining, as more and more employerssee pension contributions as a large expense avoidable bydisbanding the defined benefit plan and instead offering adefined contribution plan.


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Labour Law Handbook (By Ojijo)Money contributed can either be from employee salary deferral or

from employer contributions. The portability of definedcontribution pensions is legally no different from theportability of defined benefit plans. However, because of thecost of administration and ease of determining the plansponsor's liability for defined contribution plans (you do notneed to pay an actuary to calculate the lump sum equivalentthat you do for defined benefit plans) in practice, definedcontribution plans have become generally portable.

In a defined contribution plan, investment risk and investmentrewards are assumed by each individual/employee/retiree andnot by the sponsor/employer, and these risks may besubstantial. In addition, participants do not necessarilypurchase annuities with their savings upon retirement, andbear the risk of outliving their assets. (In the UnitedKingdom, for instance, it is a legal requirement to use thebulk of the fund to purchase an annuity.)

The "cost" of a defined contribution plan is readily calculated,but the benefit from a defined contribution plan depends uponthe account balance at the time an employee is looking to usethe assets. So, for this arrangement, the contribution isknown but the benefit is unknown (until calculated).

Despite the fact that the participant in a defined contributionplan typically has control over investment decisions, the plansponsor retains a significant degree of fiduciaryresponsibility over investment of plan assets, including theselection of investment options and administrative providers.

A defined contribution plan typically involves a number ofservice providers, including in many cases:

1. Trustee2. Custodian3. Administrator4. Recordkeeper5. Auditor6. Legal counsel

Hybrid and cash balance plans Hybrid plan designs combine the features of defined benefit and

defined contribution plan designs.


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Labour Law Handbook (By Ojijo)A cash balance plan is a defined benefit plan made by the

employer, with the help of consulting actuaries (like KwashaLipton, who it is said created the cash balance plan) toappear as if they were defined contribution plans. They havenotional balances in hypothetical accounts where, typically,each year the plan administrator will contribute an amountequal to a certain percentage of each participant's salary; asecond contribution, called interest credit, is made as well.These are not actual contributions and further discussion isbeyond the scope of this entry suffice it to say that there iscurrently much controversy. In general, they are usuallytreated as defined benefit plans for tax, accounting andregulatory purposes. As with defined benefit plans, investmentrisk in hybrid designs is largely borne by the plan sponsor.As with defined contribution designs, plan benefits areexpressed in the terms of a notional account balance, and areusually paid as cash balances upon termination of employment.These features make them more portable than traditionaldefined benefit plans and perhaps more attractive to a morehighly mobile workforce.

Target benefit plans are defined contribution plans made to match(or resemble) defined benefit plans.


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SOCIAL SECURITY

social securitySocial security are public measures, against the economic and

social distress that otherwise would be caused by the stoppageor substantial reduction of earnings resulting from sickness,maternity, employment injury, unemployment, invalidity, oldage and death; the provision of medical care; andthe provision of subsidies for families with children

Social security is based upon a concept set forth in Article 22of the Universal Declaration of Human Rights which states,Everyone, as a member of society, has the right to socialsecurity and is entitled to realization, through nationaleffort and international co-operation and in accordance withthe organization and resources of each State, of the economic,social and cultural rights indispensable for his dignity andthe free development of his personality. In simple terms, thesignatories agree that society in which a person lives shouldhelp them to develop and to make the most of all theadvantages (culture, work, social welfare) which are offeredto them in the country.

Social Security may also refer to the action programs ofgovernment intended to promote the welfare of the populationthrough assistance measures guaranteeing access to sufficientresources for food and shelter and to promote health and well-being for the population at large and potentially vulnerablesegments such as children, the elderly, the sick and theunemployed. Services providing social security are oftencalled social services.

Terminology in this area in the United States is somewhatdifferent from in the rest of the English-speaking world. Thegeneral term for an action program in support of the wellbeing of the population in the United States is welfareprogram and the general term for all such programs is simplywelfare. In American society, the term welfare arguably hasnegative connotations. The term Social Security, in the UnitedStates, refers to a specific social insurance program for theretired and the disabled. Elsewhere the term is used in a muchbroader sense, referring to the economic security society


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Labour Law Handbook (By Ojijo)offers when people are faced with certain risks. In its 1952Social Security (Minimum Standards) Convention (nr. 102), theInternational Labour Organization defined the traditionalcontingencies covered by social security as including:

Survival beyond a prescribed age, to be covered by old agepensions;

The loss of support suffered by a widow or child as the result ofthe death of the breadwinner (survivor’s benefit);

Responsibility for the maintenance of children (family benefit);The treatment of any morbid condition (including pregnancy),

whatever its cause (medical care);A suspension of earnings due to pregnancy and confinement and

their consequences (maternity benefit);A suspension of earnings due to an inability to obtain suitable

employment for protected persons who are capable of, andavailable for, work (unemployment benefit);

A suspension of earnings due to an incapacity for work resultingfrom a morbid condition (sickness leave benefit);

A permanent or persistent inability to engage in any gainfulactivity (disability benefit);

The costs and losses involved in medical care, sickness leave,invalidity and death of the breadwinner due to an occupationalaccident or disease (employment injuries).

People who cannot reach a guaranteed social minimum for otherreasons may be eligible for social assistance (or welfare, inAmerican English).

Modern authors often consider the ILO approach too narrow. Intheir view social security is not limited to the provision ofcash transfers, but also aims at security of work, health, andsocial participation; and new social risks (single parenthood,the reconciliation of work and family life) should be includedin the list as well.

Social security may refer to:¯ social insurance ¯ social services ¯ basic security


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Labour Law Handbook (By Ojijo)social security regulationThe social security and protection sector is regulated by

government through the Ministry of Gender, Labour and SocialDevelopment (MGLSD). The Ministry is responsible forpolicy functions, including tabling bills in Parliament forthe enactment of laws.

Other ministries providing social security-related servicesinclude: the Ministry of Public Service for pension managementof civil servants, the Ministry of Health which is developingthe National Health Insurance Scheme (NHIS); and the Ministryof Finance, Planning and Economic Development which overseesthe operation of the National Social Security Fund (NSSF).

Socials security benefitsThere are nine social security benefits, namely:1. Medical care2. Old-age benefit3. Invalidity benefit4. Survivors’ benefit5. Sickness benefit6. Maternity benefit7. Employment injury benefit8. Unemployment benefit9. Family benefit

Right to social securitySocials security is a right provided for in Article 22 of the

Universal Declaration of Human Rights (1948) which statesthat: “Everyone, as a member of society, has the right tosocial security”. It is also included in InternationalCovenant on Economic and Social Rights (1966, 1976). However,while it exists in the constitution of various countries interms of what the government considers important, it is not inthe main body of the constitutions.

social insurance


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Labour Law Handbook (By Ojijo)social insurance, where people receive benefits or services in

recognition of contributions to an insurance program. Theseservices typically include provision for retirement pensions,disability insurance, survivor benefits and unemploymentinsurance.

social services social services provided by government or designated agencies

responsible for social security provision. In differentcountries, that may include medical care, financial supportduring unemployment, sickness, or retirement, health andsafety at work, aspects of social work and even industrialrelations.

basic security basic security irrespective of participation in specific

insurance programs where eligibility may otherwise be anissue. For instance, assistance given to newly arrivedrefugees for basic necessities such as food, clothing,housing, education, money, and medical care.

Income maintenance, Unemployment benefitsThis policy is usually applied through various programs designed

to provide a population with income at times when they areunable to care for themselves. Income maintenance is based ina combination of five main types of program:

Social insurance, Means-tested benefits, financial assistance provided for those

who are unable to cover basic needs, such as food, clothingand housing, due to poverty or lack of income because ofunemployment, sickness, disability, or caring for children.While assistance is often in the form of financial payments,those eligible for social welfare can usually access healthand educational services free of charge. The amount of supportis enough to cover basic needs and eligibility is oftensubject to a comprehensive and complex assessment of anapplicant's social and financial situation. See also IncomeSupport.

Non-contributory benefits.


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Labour Law Handbook (By Ojijo)Several countries have special schemes, administered with no

requirement for contributions and no means test, for people incertain categories of need: for example, veterans of armedforces, people with disabilities and very old people.

Discretionary benefits. Some schemes are based on the discretion of an official, such as

a social worker.Universal, categorical benefits, demogrants. These are non-contributory benefits given for whole sections of

the population without a means test, such as family allowancesor the public pension in New Zealand (known as New ZealandSuperannuation). See also, Alaska Permanent Fund Dividend.

Social protectionSocial protection refers to a set of benefits available (or not

available) from the state, market, civil society andhouseholds, or through a combination of these agencies, to theindividual/households to reduce multi-dimensional deprivation.This multi-dimensional deprivation could be affecting lessactive poor persons (such as the elderly or the disabled) andactive poor persons (such as the unemployed).

This broad framework makes this concept more acceptable indeveloping countries than the concept of social security.Social security is more applicable in the conditions, wherelarge numbers of citizens depend on the formal economy fortheir livelihood. Through a defined contribution, this socialsecurity may be managed.

But, in the context of widespread informal economy, formal socialsecurity arrangements are almost absent for the vast majorityof the working population. Besides, in developing countries,the state's capacity to reach the vast majority of the poorpeople may be limited because of its limited infrastructureand resources. In such a context, multiple agencies that couldprovide for social protection, including health care, iscritical for policy consideration. The framework of socialprotection is thus holds the state responsible for providingfor the poorest populations by regulating non-state agencies.

Collaborative research from the Institute of Development Studiesdebating Social Protection from a global perspective, suggests Lawpronto Training Manuals

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Labour Law Handbook (By Ojijo)that advocates for social protection fall into two broadcategories: 'instrumentalists' and 'activists'.'Instrumentalists' argue that extreme poverty, inequality andvulnerability, is dysfunctional in the achievement ofdevelopment targets (such as the MDGs). In this view socialprotection is about putting in place risk managementmechanisms that will compensate for incomplete or missinginsurance (and other) markets, until a time that privateinsurance can play a more prominent role in that society.'Activist' arguments view the persistence of extreme poverty,inequality and vulnerability, as symptoms of social injusticeand structural inequality and see social protection as a rightof citizenship. Targeted welfare is a necessary step betweenhumanitarianism and the ideal of a 'guaranteed social minimum'where entitlement extends beyond cash or food transfers and isbased on citizenship, not philanthropy.


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STAFF PROVIDENT FUNDS

retirement fund, pension fund, staff provident fund A retirement (pension or provident) fund is a legal entity,

separate from the employer and service providers. Allcontributions and investments are held by the fund in the nameof the fund.

stand-alone fund, umbrella fund A stand-alone fund serves just one employer; an umbrella fund

combines many employers under one legal structure.Staff provident fund membership• This is a matter of company policy and must be laid down in

the rules of the fund. Some companies exclude contractworkers, weekly paid staff or factory workers; others withhigh staff turnover prescribe waiting periods before newemployees can join. The criteria for eligibility must beobjectively determinable.

• Once a fund is established and the eligibility criteria havebeen set, all existing employees meeting these criteria areinvited to join. Thereafter, all new employees who meet theeligibility criteria must join as one of their terms ofemployment.

Staff provident fund contributionThis should be 15% of employee’s salary.Item % of

Salary

Employer Contribution 9.9%

Less insurance premiums (life, disability, dreaddisease and funeral)

(3.3%)

Less administration (1.3%)

Plus employee contribution 5.9%

Total to investment 11.2%


203

Labour Law Handbook (By Ojijo)Staff provident fund Contribution ratioThe contribution ratio should be 1:1, with employer and employee

both contributing equally to the fund.Staff provident funds benefits• withdrawal benefits, paid to employees who resign or are

dismissed• retrenchment benefits, paid to employees who are retrenched• retirement benefits, paid to employees when they retire• insured benefits, including benefits paid to a worker who is

disabled and benefits paid to the dependants of a employee whodies.

Staff provident funds service providers• advice/consulting• administration• investment management

Staff provident funds service providers fees

• Consulting and administration: as 1% of salary• Investment management: 1.5% pa. • Investment advisors – performance based -20 % of ROI; 0.5 % of

assets.selection criteria for asset management company• accuracy and consistency of communication (reports and

performance feed-back), • administrative competence (this may require a due diligence

review), • transparency (on costs, fees and performance), • ease and functionality of online services, the emphasis on

governance, • the make-up of the Board of Trustees (ideally professional and

independent)


204

Labour Law Handbook (By Ojijo)• ethical values.

Board of Trustees and Principal Officer• management board /board of trustees: oversight• principal officer: day-to-day running of the fund.• legal training & investment training (investment and

regulatory non-compliance risks)• dedicated professional trustees (umbrella fund).

Staff provident fund rules• format prescribed by the Pension Funds Act• registered with financial services board• umbrella and stand alone rules staff provident fund investment vehiclesThe staff provident fund always employs the services of a fund

manager, which can then invest in financials services sector,or alternative services sector.

Financial instruments investments include:• cash instruments-bank deposit accounts

• debt instruments-bonds/money lending/bills • equity instruments-shares, stock options • risk instruments-futures, forwards and swaps Alternative investment products include:1. Collective Investment Schemes: investment company & investment clubs 2. Property/Fixed Assets : fixed or movable; tangible or intangible 3. Collectibles : antiques or manufactured 4. Commodities: hard, medium and soft commodities

5. Private Equity: venture capital, angel, leveraged buyouts, and/or mezzanine capital

6. Insurance Assets: education, life, retirement, health, property

7. Forex Investments: futures, units


205



206


Index

Abolition of Forced Labour Convention, 1957, 22

Accessibility (dispute resolution), 40

actual dismissal, 76ad hoc arbitration proceedings, 61

Adjudicative processes, 41Administrative Boards, 48administrative leave, 118administrative review boards, 59

affirmative action, 117Agency shop agreement, 91Agreements, 9Alternative dispute resolution, 44

Alternative dispute resolution (ADR), 30, 42

Alternative investment products, 144

annual leave, 125Appeals, 79Appropriate dispute resolution, 44

arbitral tribunal, 60arbitration, 46Arbitration, 48Arbitration Agreement, 53Arbitration Conventions and Investment Treaties, 53

Arbitration Procedural Rules, 56

arbitration tribunal, 60Articulated dissent, 107asset management company,

143Assignment, 83

at will jurisdiction, 120bargaining unit, 91basic security, 140Benefits, 134Benefits of ADR, 44Bilateral Investment Treaties, 55

Bilateral NDA, 68Billing And Payment, 85Board of Trustees, 143Boilerplate, 84Bossnapping, 106boycott, 104, 116by-laws, 14case law, 8casual work, 108categorical benefits, 140Center for Alternative Dispute Resolution, 60

Certifications, 85Changes of conditions, 70Changes to employee's terms and conditions of work, 82

Characteristics of effectivedispute mechanisms, 40

Charters (international law), 10

Child Labor, 99Child labour, 20Children's Ombudsman, 58Citizen Advocate, 58civil case, 27civil dispute, 31Closed shop agreement, 91code, 14co-determination’, 34collaborative divorce, 46collaborative law, 46


207

Labour Law Handbook (By Ojijo)collective agreement, 92collective bargaining, 119Collective bargaining, 89collective bargaining agreement, 92, 119

collective labour law, 7collective rights, 95Company vs. Company Disputes, 32

Company vs. State Disputes, 31

compassionate care leave, 119

Compensation from employees for terminating a contract,82

compromise agreement, 92confidential disclosure agreement (CDA), 67

Confidentiality, 84confidentiality agreement (CA), 67

Conflict management, 41Conflict resolution, 41Consensual processes, 41Consequential Damages, 85constitution, 8constructive dismissal, 77Constructive Dismissal, 70Contingent work, 108contingent workforce, 109continuous bargaining, 78contract for service, 64contract for services, 83contract of employment, 78contract of service, 64contract to be written, 65Contracting States, 54contribution, 142Contribution ratio, 142

Control (contract for services), 83

Conventions (international law), 10

Core Labor Standards, 96corporate action, 122Corporate Restructuring:,

123course of employment, 65court, 59covenant not to compete, 118criminal case, 27criminal dispute, 31customary international law,

8Customs, 8Declaration on Fundamental Principles and Rights at Work, 20

Declarations, 11decrees, 16Defined benefit pension plan, 134

defined contribution plan, 132

Defined contribution plan, 136

demogrants, 140Disability pension, 133Discretionary benefits., 140Discrimination (Employment and Occupation) Convention,1958, 22

Dismissal, 69, 80Displaced dissent, 107Dispute, 27Dispute mechanisms, 28dispute resolution, 28Dispute resolution, 28Dispute Resolution, 85


208

Labour Law Handbook (By Ojijo)dispute resolution mechanisms, 28

dispute resolution methods, 28

Dispute Review Board, 48Disruptive picketing, 112do not work order, 104domestic withholding taes,

127Dues checkoff agreement, 92duty of fair representation,

34Early neutral evaluation, 46Economic considerations(contract forservices), 83

edict, 16emoluments, 117Employee benefits, 122employee choice doctrine, 38employee compensation fraud,

102Employee Leave, 125Employees Provident Fund,

127employer, 38employer compensation fraud,

103employers liability, 117employment, 38employment at will, 38employment contract, 64Employment contract provisions, 65

Employment discrimination, 125

Employment Discrimination, 98

employment law, 6Employment Policy Convention, 1964, 23

employment standards, 38Employment standards, 6Employment tribunals, 17Employment-based pensions,

133Energy Charter Treaty, 55Enterprise bargaining, 94Entire Agreement, 86equal opportunity, 36equal pay, 117equal pay for equal work.,

97Equal Remuneration Convention, 1951, 22

equal treatment, 117equality is equity, 117equality of fair opportunity, 39

Equity(dispute resolution), 40

Evasion, 103Evidence (International litigation), 51

Examples of Tax-Free Income,129

Exchange of Notes, 11eXclusion of Liability, 88Executive Memoranda, 15expatriate taxation, 129Expert Determination, 47external dispute resolution,

42Extrajudicial dispute resolution, 29

Facilitation, 47Fact in Dispute, 28Failure to Disclose, 103fair remuneration, 121Fair share provision agreement, 91

Faking injuries, 103


209

Labour Law Handbook (By Ojijo)Family group conference, 46family leave, 125Financial instruments, 143flying pickets, 112Force Majeure, 86Forced Labour Convention, 1930, 22

Forced resignation, 70formal equality of opportunity, 37

Framework Treaty, 12Freedom of Association and Protection of the Right to Organise Convention, 1948, 22

fund contribution, 142fund membership, 142funded defined benefit pension, 135

garden leave clause, 117general strike, 105genuine redundancy, 36golden handshake, 119golden hello/, 119'go-slow', 106gratuity, 76green ban, 111greve, 104grievance, 106grievance mechanisms, 28Guarantees And Warranties,

85harsh, unjust or unreasonable, 73

heart attack standard, 119hostile work environment,

119Hybrid and cash balance plans, 137

IBA Rules, 49

Impact Of Corporate Actions,123

Income maintenance, 140indefinite contract, 65Indemnity, 87independent contractor, 38independent contractor agreements, 83

Individual vs. Company Disputes, 32

Industrial action, 108industrial democracy, 118industrial unrest, 106Inflating experience, 103Inflating injuries, 103Influence the share price:,

123Information Commissioner, 58Inspector General, 58institutional arbitration proceedings, 61

insubordination, 120insured benefits, 143International arbitral tribunals, 62

International Arbitration, 53

International courts, 62international dispute resolution institutions, 62

international judicial institutions, 62

International labor standards, 21

International labour law, 20International Labour Organization (ILO), 19

International Labour Organization Conventions, 21

International litigation, 51


210

Labour Law Handbook (By Ojijo)International withholding taxes, 127

interpretative declaration, 11

Involuntary termination of employment, 69

Italian strike, 110job action, 108job description, 34Jobsite Safety, 85Joint Declaration, 11judex, 59judge-made law, 8Judicial dispute resolution,

29jurisdiction, 59Jurisdiction, 87Jurisdiction (International litigation), 51

jury duty, 124jus dicere, 59Labor rights, 95Labor rights issues, 97labor strike, 104labor trial, 34labor union, 113Labor unrest, 106Labour Appeal Court, 17labour courts, 17labour inspection, 18labour inspection officers,

18labour law, 6labour law (collective), 6labour law (individual), 6Labour law (standards),, 6labour laws, 18Labour Officer, 19labour regualtions, 18labour rules, 18labour standards, 20

labour statutes, 18labour strike, 104labour tribunals, 17Latent dissent, 107Layoff, 69legal case, 27legal dispute, 27Legal Framework for International Arbitration, 53

Legislation, 8Legislative history, 9Legitimacy (dispute resolution), 40

lex arbitri, 56Liquidated Damages, 87Litigation, 48Long arm jurisdiction, 51Lowest age limit of an employee, 65

Malingering, 103mandatory arbitration, 46Mandatory clauses, 66Mandatory Corporate Action:,

123Mandatory leave, 124Mandatory retirement., 69Mandatory with Choice Corporate Action:, 124

mass picket, 111mass strike, 105Mass Termination, 72master agreement, 93master contract, 93maternity leave, 124mediation, 45Medicare Tax, 126Medicare Taxes, 126Memoranda of Understanding,

12meritocracy, 77


211

Labour Law Handbook (By Ojijo)military leave, 124Minimum Age Convention, 1973, 22

minimum wage, 119Minimum wage law, 21ministerial directives, 15Ministry of Labour, 18Misconduct, 79Modus Vivendi, 12Multilateral Trade Agreements, 56

Mutual Gains Bargaining (MGB), 90

National Courts, 57National Laws, 57national trade union center,

114negotiation, 47Neutral fact-finding, 46New York Convention, 53No Agency, 87No Partnership, 87non-compete clause, 118non-compete clause,, 66Non-contributory benefits.,

140non-disclosure agreement (NDA), 67

non-disclosure clause, 67Non-discrimination in employment, 97

Notice Pay, 81notice to strike, 104Occupation of factories,

105, 107Offsetting of annual leave,

80OHSA officers, 18Old injury, 103Ombud, 47ombudsman, 58

Ombudsman, 47on strike, 104on the part of the officer.,

118Online dispute resolution,

30Optional Protocol, 12ordinance, 14Organizational dissent, 107Other Dismissals, 74Other domestic withholding taes, 127

overtime ban, 108Ownership of factors of production(contract for services), 83

Parental leave, 125Parliamentary Commissioner,

58paternity leave, 124Pattern bargaining, 90pay as you earn (paye) tax,

129pay as you earn tax, 126paye, 126paye tax, 126payroll tax, 127Payroll taxes, 126pension, 132pension fund, 142Permanent tribunals, 61personal disputes, 33Picketing, 111pickets, 116Precarious work, 105Precarity, 105Precedents, 8Predictability (dispute resolution), 40

Preparatory works, 9Presidential directives, 15


212

Labour Law Handbook (By Ojijo)presidential executive orders, 15

primary boycott, 77Principal Officer, 143principle of party autonomy,

53Procedural matters, 74Procedures of an inquiry, 79Proces-Verbal, 13proclamation, 16Protocol as a supplementary treaty, 13

Protocol of Signature, 12Protocol to amend, 13Protocols, 12provident fund, 142provident fund investment vehicles, 143

provident fund rules, 143provident funds benefits,

142provident funds service providers, 143

public advocate, 58Purpose Of Corporate Actions, 122

Quasi-judicial internationalinstitutions, 62

Recall Rights, 73Recognition and enforcement (International litigation),52

recognition strike, 104reconciliation, 41redundancy, 34, 75Regional Conventions, 53Regular Rate, 72Regular Wages, 72Regular Work Week, 72regulation, 14

Rehire following termination, 70

Rejection of employee's resignation, 82

Remittance to government, 128

Remote injury, 102Reporting, 128Requirements During the Statutory Notice Period, 72

restrictive covenant, 66restructuring, 35Retention of title, 87Retirement, 132retirement benefits, 142retirement fund, 142retrenchment, 74retrenchment benefits, 142Return profits to shareholders:, 122

reus, 59right to collectively bargain, 116

Right To Compensation For Injury During Work, 121

Right To Information Pertaining To The Work, 121

Right to Organise and Collective Bargaining Convention, 1949, 22

Right To Safe Work Environment, 120

Right to social security, 139

Right To Withdraw From Any Dangerous Work, 121

right to work, 76Rights-compatibility (dispute resolution), 40

right-to-work law, 120Salary-in-lieu of notice, 81


213

Labour Law Handbook (By Ojijo)Salient features of ADR, 42scope of labour law, 6Scope Of Services, 84secondary action, 77, 104secondary legislation, 14Secondary picketing, 111selective strike, 110separation and severance agreements, 68

Service of process (International litigation),51

service providers fees, 143severance, 75severance package, 75sexual harassment, 125shop steward, 115sick leave, 125Sick leave, 124Signatories and Parties, 13sit-down strike, 105slowdown, 106Social and state pensions,

133social insurance, 140Social insurance, 140Social protection, 140social security, 138social security regulation,

139Social Security Taxes, 126social services, 140Solidarity action, 104Sources of law, 8Staff provident fund contribution, 142

Staff provident fund membership, 142

stand-alone fund, 142State vs. State Disputes, 31

Statutory compensation law, 101

stay away, 106strike action, 116Strike action, 104strike list, 104strike notice, 104Strike pay, 101subordinate legislation, 14subsidiary legislation, 14substantially similar positions, 36

substantive equality of opportunity, 38

Summary Dismissals, 74Surface bargaining, 92sympathy strike, 104Taking of annual leave during notice period, 80

Taking sick leave during notice period, 81

Tax avoidance, 130Tax evasion, 131tax exempt income, 129Tax exemption, 129tax-free remuneration, 129technical redundancy, 35Temporary Layoff, 71Temporary Work After Termination Date in Notice,72

Termination, 87Termination by mutual agreement, 69

Termination of Contract withNotice, 80

Termination of contract without notice, 81

Termination of Employment Convention, 1982, 24

Termination Pay, 72


214

Labour Law Handbook (By Ojijo)the bar, 59the bench, 59trade union, 113transnational litigation,

50, 51Transparent (dispute resolution), 40

Treaties, 13Treaties and declarations assources of law, 9

Trial considerations (International litigation),52

Trial work, 66tribunal, 58two types of dispute resolution processes, 41

Two types of disputes, 31Types Of Corporate Actions,

123Types of restrictive covenants, 67

umbrella fund, 142Underreporting payroll., 103Unemployment benefits, 140unfair dismissal, 73unfair list, 104unfunded defined benefit pension, 135

Unilateral NDA, 68Union dues, 113union organiser, 114union organizer, 114union representative, 115union security agreement, 91Union shop agreement, 91union steward, 115

union wage premium, 101Universal, 140Unsafe labor practices, 100Voluntary (non-mandatory) leave, 124

voluntary arbitration, 46Voluntary Corporate Action:,

123Voluntary labour standards,

25Wage withholding, 127Waiver, 88walkout, 108wallace damages, 119Washington or ICSID Convention, 54

Weekly Rest (Industry) Convention, 1921, 22

whipsaw strike, 110wildcat strike, 110wildcat strike action, 110withdrawal benefits, 142withholding tax, 126work permits, 130workers' compensation, 120Workers' compensation, 101Workers' compensation fraud,

102workers' rights, 95workers’ compensation, 124Workplace discrimination, 98Work-to-rule, 110Worst Forms of Child Labour Convention, 1999, 22

Written Notice of Termination, 71

wrongful dismissal, 74
