Development of employement

8/9/2019 Development of employement

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1 Development of employment law2 Employment relationship

3 Employer’s liability

4 Termination5 Unfair & wrongful ismissal

! Dis"rimination

# Employee welfare legislation$ %olle"tive bargaining


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1 Development of employment law 1' (aster & servant relationship) before 1*th "entury

2' Terms implie by "ourts

3' +egislation for minimum wor,ing "onition stanars

4' +aw of "olle"tive bargaining


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2 Employment relationship

-gen"y v employment

Employment -gen"y

-uthority

Employer) ire"t. "ontrol an superviseemployee’s wor,

/rin"ipal)

Employee) obeien"e -gent) is"retion

0ewar alary %ommission+iability Employer bears wier s"ope of liabilities /rin"ipal


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nepenent "ontra"tor v employment

Employment nepenent "ontra"tor

nepenen"e Employee)╳ √

+iability Employer’s vi"arious liability elf liability

0ewar Employee) salary /rofit

0ewar Employee)√ ╳


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tatutory intervention in employment) written parti"ulars

Employer must give written parti"ulars of terms of his "ontra"t in 2months of "ommen"ement of employment. ini"ating)

ame

Date of "ommen"ement

%ontinuos "ounting of previous employment. if any

0ate of pay an "al"ulation metho

Terms & "onitions "overing wor,ing hour. holiays. si", pay an pension

s"heme

oti"e perio for early termination

ob title

Dis"iplinary rules

ts status in state pension s"heme


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mplie terms of the "ourts

1' Employer’s uty

/ay the amount as agree

Treat employees with trust an respe"t

(eet safety reuirement

6ive employee time off for publi" uties

nemnify employees for e7penses in"urre in wor,


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2' Employee’s uty

8e reay an willing to wor,

Use reasonable "are an s,ill

9bey lawful orers

+oo, after employer’s property

-"t in goo faith

Reasonableness of non-competition clauseReasonableness of non-competition clause


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e"tor /osition 0estraint "lause 0easonable:ness

0eason

-ttorney /artner ot to wor, as an attorney

within a 5 mile raius for 2years

√ e"essary to prote"t its

"lient base an goowill;

/artner ot to wor, as attorney for2 years;

× o region is mentione;

Typist ot to wor, as typist for

law firm within 5 mileraius for 1 year

× Typist possesses neither

goowill nor trae se"rets

Euipmentma,er

alesman ot to soli"it orers frome7:"ustomer for 2 years

×


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3 Employer’s liability

%ontra"tual liability

Tort liability

Illustration:

- is employe >enry’s Diary to rive mil, tru",; ?hile pro"eeing

on his appointe rouns. he negligently "ollies with another "ar;

>e has "ommitte a tort in the "ourse of employment; The vi"tim

may sue both - an >enry’s Diary;


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weatshop v wor,er’s safety

他才1 5

岁！


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un ?enliu： baly beaten ue

to resignation， spening !months for "rawling home from

>enan to hanong; 9nly

44.loo, li,e !@’s！


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4 ermination

4;1 oti"e of termination

1' 0easonable noti"e) 3:! months. or 1 year

2' /ayment in lieu of noti"e perio

4;2 Dismissal without noti"e

1' 6rouns

(is"onu"t

Disobeien"e

n"ompeten"e) iffi"ult to =ustify

llness) permanent isability or "onstant re"urring illness

2' Effe"t) is"harge of "ontra"t


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4;3 0eunan"y

1'%ause of reunan"y

Employer has "ease to "arry on the business

Employer has "ease to "arry on business in pla"e employee was employe

The ,in of wor, either has been iminishe or is e7pe"te to iminish

2'uitable alternative employment

(ust a""ept; Else. lose the right to reunan"y pay


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3' 0eunan"y payment

%ompulsory stanars apply if no spe"ial terms in the "ontra"tgiving them more

! "nfair # wron$ful %ismissal

5;1 Unfair ismissal

1' t is unfair unless =ustifie in 5 aspe"ts)

%apability or ualifi"ation to o the =ob

Employee’s "onu"t insie or outsie the employment ?hether he is reunant

?hether it is illegal to ,eep the employee on the =ob

ome other substantial reasons


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2' 0emeies

0einstatement) get his ol =ob ba", & re"over ba",:pay

0e:engagement) give similar =ob

%ompensation) same as reunan"y payment

5;2 ?rongful ismissal

1' oti"e perio2' 0emeies) violation of "ontra"t

3' To sue for brea"h of "ontra"t


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& Discrimination!;1 E/-Eual /ay -"t' 1*#@

1' (atters "overe by "ontra"t

2' ot only pay. but also si", pay. mortgage s"heme. rent

allowan"e

3' +i,e wor,. wor, rate as euivalent) no less favorable than

that of man4' 0emeies) amages. arrears of pay


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!;2 D- e7 Dis"rimination -"t' 1*#5 & 1*$!

1' 3 types of is"rimination

Dire"t is"rimination

nire"t is"rimination

Ai"timiBation

2' (ethos of is"rimination

(a,e is"riminatory arrangement

9ffer is"riminatory terms of employment

0efuse or eliberately omitt to offer employment ue to one’s se7


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3' E7"eptions

?or, one wholly or mainly outsie UC

ob performe in private househols

4' /ermissible is"rimination


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; The nee to preserve e"en"y

The essential nature of the =ob "alls for authenti" male or female

"hara"teristi"s

The =ob is a live:in =ob where employer "an’t reasonably provie fa"ilities for

both se7es;

The nature of the establishment where the wor, is one reuires one se7 orthe other is employe;

o"ial wor, =ob proviing personal servi"es whose nature reuires it is hel

by a parti"ular se7;

The =ob involves going to "ountries where might ob=e"t to the employee’s se7;

The =ob is one of two hel by a marrie "ouple


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5' Enfor"ement by inustrial tribunal

-ffirm violation

-war "ompensation

n=un"tion) not to is"riminate in the future

!;3 00- ra"e 0elation -"t' 1*#!

1' 9utlaws 3 types ra"ial is"rimination li,e se7 is"rimination a"t

2' 9utlawe is"rimination ue to "olor. ra"e. nationality. or ethni"or national origin


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3' E7"eptions

/romote authenti"ity in a wor, of rama or entertainment

%reate an authenti"ity wor, of art

6ive authenti"ity to pla"es where foo & rin, are serve

Employ so"ial wor,ers "on"erne with the welfare of ra"ial groups;4' Enfor"ement by %ommission for ra"ial Euality

!;4 Disable persons

(inimum 3 shoul be registere isable persons


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!;5 /ersons with "riminal re"ors1' %onvi"tion be"omes spent after a length of time;

2' Dismissal ue to spent "onvi"tion is unfair ismissal;

3' 2;5 years =ail will never be"ome spent;

%ase) /89% %hengu 8ran"h’s height reuirement "hallenge

/89% %hengu 8ran"h publishe its hiring poli"y in a %hengu base newspaper on 23 De"ember 2@@1; 9ne of the reuirements is

that male "aniates must be 1!$ "m or above. an female

"aniates must be 155 "m or above;


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The plaintiff. iang Tao is a law s"hool stuent of i"huan University; >e believes

he is well ualifie in all other aspe"ts. but the height reuirement isualifies him;

>e was very surprise an angry at su"h a reuirement;

in"e /89% is an aministrative organ. he believes su"h height reuirement

violate his right to euality; >e loge an aministrative lawsuit against the

/89% %hengu 8ran"h to ?uhou Distri"t %ourt of %hengu on # anuary 2@@2.

whi"h a""epte the "ase;

u"h a bol move attra"te e7tensive attention of the legal "ommunity an press;

Uner su"h pressure. /89% %hengu 8ran"h voluntarily moifie its hiring poli"y

in whi"h the height reuirement was remove on 1@ anuary 2@@2. in absen"e of

any "ourt =ugment;

>owever the plaintiff’s suit was re=e"te by the trial "ourt on 21 (ay 2@@2; The

plaintiff was amitte to grauate s"hool of i"huan University e7empte from

entran"e e7amination on 21 une 2@@2;


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' Employee welfare le$islation1' ?or,ing "onitions

>ealth & afety at wor, et" -"t 1*#4

2' Unemployment insuran"e

3' ?or,er’s "ompensation

on:fault base


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$ %olle"tive bargaining

1' Trae union)

(ay sue an be sue

uasi:"orporate boy

2' %olle"tive agreement

Development of employement

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