Do current Employment Laws achieve satisfactory balance between the interests of employers, workers and society at large?


Essay, 2011

10 Pages, Grade: 7.8


Excerpt

Employment law is concerned with the relations between employers and their employees; the cornerstone of which is the contract of employment (Department of Criminology, 2011). The rights and responsibilities of employees derive from this contract of service and the various Acts of Parliament which lay down employment standards in addition to other rights and duties imposed by Common Law on the parties to the contract of employment, regarded as rights implied by Common Law. Considering that Parliament is an assembly of delegates of society, and that Common Law arise from decisions of Judges in courts and tribunals of society, a debate on whether a body of law concerned with the relationship between an employer and employee applies to society at large becomes pointless. This essay therefore focuses on the extent to which these laws provide mutual satisfaction for the employer, worker and society at large –providing for their aspirations, and addressing concerns in a manner that suits the composite parties’ interests. A comprehensive assessment of what each of the parties represents, their subsequent aspirations and concerns is thus requisite for an assessment of how far employment laws go in striking equilibrium in interests amongst employers, workers and society at large.

Lee (1996: 38) defines an employer as “…a legal entity that controls and directs a worker under an expressed or implied contract of employment and pays (or is obligated to pay) him/her salary or wages in compensation”. This definition focuses on the relationship between an employing entity and a natural being, and their rights and obligations as pertains to this relationship. He further describes an employee as a natural being who contributes labour and expertise to the endeavours of an employer, and is usually hired to perform specific duties packaged into a job. The definitional boundaries of “employee” are often stretched to include or exclude a variety of arrangements for instance, there is a wide variation in opinion as to whether an agency worker can be considered an employee in an implied contract as ruled in Dacas v Brook Street Bureau (UK) Ltd[1], and overruled in James v London Borough of Greenwich[2] . Noting that this essay is not a conceptual discussion of the constitutional intricacies of terms of employment, the definitive ingredients of provision of personal labour and expertise to an employing entity under a contractual arrangement, where a certain degree of control and obligations exists will be adopted.

A society is defined by Jenkins (2002) with specific reference to the Human Society as a group of people related to each other through persistent relations. Petrazycki (2006) broadens the definitional framework to large social groupings that share the same geographical territory, are subject to the same political authority and dominant cultural expectations. While Jenkins and Petrazycki focus on the human and broader interaction processes respectively, the structural and non-human components of these societies, including corporations cannot be overlooked. It therefore becomes evident that both employers and employers are not distinct from society but are small components of the wider society. The essay question thus becomes concerned with how employment law can enable two components of society to mutually satisfy their interests while maintaining consistency with, and enabling the interest of the wider social framework within which they both exist.

Karl Marx posits that human society as we know came into existence as people pooled together in order to survive the harsh, and oft dangerous environment in which they lived, and on the premises that ‘the whole is greater than the sum of different parts’. This proposition underscores the present day needs/interest of societies of various forms be it contemporary states, or primitive tribal organizations i.e. security, the advancement of its interests, and the continuation of itself in a manner devoid of internal (and undesirable external) disruptions. Employers are pre-occupied with the pursuit of their visions and missions, and achievement of their goals and objectives which could range in diversity from profits, and market dominance to community support and ‘making the world a better place’ (Kotler, 2005). Employees engaged by employers in pursuit of these goals and visions usually harbour more personal interests –improving their conditions as well as that of people important to them however, it is not uncommon to find employees whose personals goals actually mirror those of the employers, or even society at large. Does employment law therefore take into consideration these varying interests? If so, how well does it mutually promote the interests of these three groups?

The essay will attempt to answer these questions with specific reference to Ugandan and British Laws. Uganda’s legal system traces its origins to colonial times under British rule. Up to independence in 1962, purely British Laws were in effect in the country. The Ugandan Legal System is still solidly based on British Common Law with minor additions brought by the 1995 Constitution ---decisions made by British judges are often referred to in court rulings. Labour legislation in Uganda comprises the i) Employment Act No.6 of 2006, ii) the Labour Unions Act No 7 of 2006, iii) the Labour Disputes [Arbitrations and Settlement] Act No 8 of 2006, iv) the Occupational Safety and Health Hazards Act No 9 of 2009, v) the Workers Compensation Act which regulates compensation to workers for diseases and injuries sustained in the course of employment, vi) the National Social Security Fund Act that obliges employers to deduct 5% off the salary of employee and contribute 10% towards the employees savings with NSSF, vii) the Pensions Act that provides for pensions of civil servants, viii) the Local Government Act that provides for remuneration on termination of services of Local Governments Employees, in addition to ix) the Public Service Standing Orders and, x) the Minimum Wages and Advisory Board Resolutions.

Probably the most obvious illustration of the balance of interests is the legal provisions surrounding contracts of employment, the tool of employment law regulating the relationship between employers and employees. Under Contract Law, only entities meeting certain legal requirements can enter into contracts, and only in pursuit of endeavours accepted by society. This provision thus regulates the activities of both employers for which they recruit employees, making sure they are consistent with the interests of society, of which they are a part, thus protecting it from illegal enterprises. Section 59 of the Uganda Employment Act 2006 expressly entitles all employees to receive a written statement describing the main terms of the contract of employment. This provision ensures that an employee is not demanded to engage in an activity outside the terms of his employment, and possibly in violation of societal norms. Within the context of the security industry, the exploits of a Mercenary organization recruiting personnel under dubious circumstances and attempting to stage a coup d’état in Equatorial Guinea in 2004, obviously in contradiction of regulatory provisions related to employment is still fresh in memory. In a related context, laws of all sovereign states prohibit Personal Protection Companies from providing their services to fugitives meaning these companies cannot recruit employees for the same task. The overall benefit of this form of regulation is that activities of employers are consistent with societal norms; employers are protected from inadvertently engaging in illegal activities, a protection that extends to its employees.

Still within a regulatory framework, Section 27(a) of the Uganda Employment Act 2006, similar to the UK Police Act 1997 and the Private Security Industry Act 2001 provides for vetting and background-checks of prospective employees especially in certain sensitive employment sectors. In this case, prospective employees with criminal histories and certain behavioural tendencies are disqualified from the employment for those positions thus ensuring the employer recruits and places employees that pose the least possible risks to society, and its own operations. Despites these vetting requirements, it does not however mean that once a person is convicted then it is the end of their employment careers –Section 27(b) of the Uganda Employment Act 2006, just like the UK Rehabilitation of Offenders Act 1974 designates certain convictions as ‘spent’ after a specified period, and that employment cannot be denied to someone on these grounds, further providing against the termination of an employee if history of such convictions is discovered after employment. Convictions for certain crimes, or periods exceeding more than 30 months cannot however be considered spent –this provision maintains consistency with the principle of commensurate deserts which establishes a correlation between the magnitude of an offence and its danger to society measured in terms of its gravity (Department of Criminology, 2010a); while minding the risks of non-rehabilitation even after the jail term has elapsed. Convicted robbers for instance cannot be employed as armed guards in Uganda, similar to sex offenders in positions where they may have access to vulnerable victims. These people may however be employed in other jobs that do not enhance the risk of repeat offending.

In addition to requiring written particulars of work, Section 59 of the Uganda Employment Act 2006 establishes a clear framework of relationship between the employer and the employee. An unambiguous statement of responsibilities as ensconced in a contract of employment establishes an accountability linkage between the employer and the employee, a pre-requisite for application of the ‘deep-pocket theory’ of liability compensation in the event that an employee causes harm to a member of society in the conduct of duties required by his contract of employment (Calabresi, 1970). An employee who sustains injuries or diseases in the course of his/her employment is entitled to compensations under the Workers Compensation Act. Although the term ‘course of employment’ is widely defined, the employer’s liability is strictly limited to specific instances meaning an employer’s vulnerability is reduced, employers are assured of some level of guarantee in the aftermath of an undesirable event, and dependants of the employee who are also members of the society are not subjected to adverse suffering as a result of his/her condition; the summation of all these fit well in the societal inspiration of social advancement without causing critical disruptions within its structure. While the notion of compensation initially appears as working against the interest of the employer, it does set the basis for spreading particular risks to risk bearing organizations (insurers) with the net result that the employer retains amicable relationships with members of society while operating within a clear framework of compensation regulation and thus avoiding exploitation, expands the society’s tax base and provides additional employment to members of the society.

[...]


[1] Dacas v Brook Street Bureau (UK) Ltd [2004] IRLR 358 (CA)

[2] James v London Borough of Greenwich [2008] IRLR 302 (CA

Excerpt out of 10 pages

Details

Title
Do current Employment Laws achieve satisfactory balance between the interests of employers, workers and society at large?
College
University of Leicester
Grade
7.8
Author
Year
2011
Pages
10
Catalog Number
V190024
ISBN (eBook)
9783656144250
ISBN (Book)
9783656144489
File size
489 KB
Language
English
Tags
employment, laws
Quote paper
Willy Nyeko (Author), 2011, Do current Employment Laws achieve satisfactory balance between the interests of employers, workers and society at large? , Munich, GRIN Verlag, https://www.grin.com/document/190024

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