Thesis (LL.M. (Labour law)) --University of Limpopo, 2010. / Refer to document

The topic of contract of employment is still contemporary issue of czech labour law. Nowadays contract of employment is under the influence of a technical and societal progress which demands frequent and important legal changes. There is also the substantial influence of contemporary European tendency to make labour law more flexible with maintaining the high level of social security standards of employees. This tendency is widely known as "flexicurity". The thesis is divided into three chapters. The chapter deals with common principles of labour law which are crucially important for understanding the issue of contract of employment. For this reason, the charter contains explaining the term "labour law" and its object, principals of labour law, the relations between the Labour Code and Civil Code, the defining the term of dependent work. This term is strongly connected with the issue of disimulation of legal act. The Chapter Two discuss a contract of employment as an agreement between employees and their employers, which have some autonomy of will which is limited by law. One section deals with nullity of contract of employment or articles of contract, in other part I try to explain the legal form of contract of employment. The last chapter is concerned with content of contract of employment. In subsection...

在資本主義國家中，勞動契約固然在確定勞動關係中扮演相當重要的角色 ，但是在共產主義生產資料公有觀念下，中國大陸向來採取所謂「統包統 配」的勞動體系，而無自由經濟體制下所重視的勞動契約觀念。直到１９ ７８年中國共產黨十一屆三中全會中，確定了經濟改革路線，強調推動建 立在結構協調和經濟效益基礎之上的經濟成長。為適應經濟體制改革後之 需要，修正原有缺乏效益的統包統配勞動制度，以勞動合同制取代原有固 定工制，方成為中共目前重要的勞動政策。中國大陸勞動合同制度的推行 方式，係由點至面逐步進行。１９８０年首先在上海進行了勞動合同制的 試點，隨後又推行到北京、廣西等部份地區。自此中國大陸發布了一連串 關於實施勞動合同的規定。在１９９４年７月５日頒布的勞動法中，更對 勞動合同與集體合同作了專章之規定，強調 " 建立勞動體系應當訂立勞 動合同 " ，對訂立勞動合同的原則與內容作了詳細之規定。勞動部發出 的〔１９９４〕３６０號《關於全面實行勞動合同制》函中進一步指出， 到１９９６年底，除個別地區和少數特殊情況的企業外，應基本在全國範 圍內實施勞動合同制度。勞動合同制度在中國大陸勞資關係體系中，所佔 有之角色日益重要，全員勞動合同制度的實施，更是指日可待。海峽兩岸 交流日益頻繁，臺商赴大陸投資者數目逐年大幅增加。中國大陸的廉價勞 動力，是吸引臺資企業赴中國大陸投資主要原因之一。但是隨著中國大陸 經濟大幅成長、勞資關係與勞動法律的變革亦隨之急遽變動，對屬於中國 大陸個別勞動法中核心部份的勞動合同制度，臺灣地區實在有必要加以瞭 解。近年來，臺灣地區從事中國大陸法律制度研究者雖然大幅增加，但卻 少有對於中國大陸極力推行並關係臺商雇用當地大陸勞動者的勞動合同制 度研究者。因此本論文將就中國大陸勞動合同制度相關問題，包括勞動合 同的成立、終止與解除、爭議之處理以及各所有制之間存在的不同問題等 加以研究，並針對臺商簽訂勞動合同問題做一整理，以期對國內研究中國 大陸勞動合同問題能收拋磚引玉之效。

<p>The general contract law principle of loyalty between negotiators, in deliberation, leads to a duty of disclosure for negotiators. The extent of this duty of disclosure is influenced by many different factors; amongst others the type of agreement, the negotiators knowledge and opportunity of procuring knowledge. The general duty of disclosure is both a part of the contract law principle of loyalty between negotiators in negotiating a contract, and an indirectly statutory obligation, that, if neglected will lead to nullification of the agreement. The legislator has stated that the general contract law, Lag (1915:218) om avtal och andra rättshandlingar på förmögenhetsrättens område (avtalslagen), should be used to regulate negotiating of contracts, including the negotiation of contracts of employment. In arbetsdomstolens judging, additional factors have been weighed in, and the judgement is done also through the use of a concept taken from employment law, the concept of ”saklig grund för uppsägning”. Arbetsdomstolen appear to prefer using employment law and principles of protection for the employee, even though the legislators opinion was that general contract law should regulate negotiations of contracts of employment. This way, other factors are included in the judging of the duty of disclosure when seeking employment than in the general judging of duty of disclosure. Amongst other the interests of society and the will of protecting the person seeking employment, affects arbetsdomstolens judging of the duty of disclosure in negotiating contracts of employment. The thesis arguments that this interpretation, of the confines between contract law and employment law, is contrary to the statements of the legislator, and also an unfit interpretation of the principle of duty of disclosure, in terms of reaching partition of risks between negotiators of contracts of employment.</p>

The general contract law principle of loyalty between negotiators, in deliberation, leads to a duty of disclosure for negotiators. The extent of this duty of disclosure is influenced by many different factors; amongst others the type of agreement, the negotiators knowledge and opportunity of procuring knowledge. The general duty of disclosure is both a part of the contract law principle of loyalty between negotiators in negotiating a contract, and an indirectly statutory obligation, that, if neglected will lead to nullification of the agreement. The legislator has stated that the general contract law, Lag (1915:218) om avtal och andra rättshandlingar på förmögenhetsrättens område (avtalslagen), should be used to regulate negotiating of contracts, including the negotiation of contracts of employment. In arbetsdomstolens judging, additional factors have been weighed in, and the judgement is done also through the use of a concept taken from employment law, the concept of ”saklig grund för uppsägning”. Arbetsdomstolen appear to prefer using employment law and principles of protection for the employee, even though the legislators opinion was that general contract law should regulate negotiations of contracts of employment. This way, other factors are included in the judging of the duty of disclosure when seeking employment than in the general judging of duty of disclosure. Amongst other the interests of society and the will of protecting the person seeking employment, affects arbetsdomstolens judging of the duty of disclosure in negotiating contracts of employment. The thesis arguments that this interpretation, of the confines between contract law and employment law, is contrary to the statements of the legislator, and also an unfit interpretation of the principle of duty of disclosure, in terms of reaching partition of risks between negotiators of contracts of employment.

The aim of the present thesis is twofold: first, to analyse some practical ethical problems that stem from the workplace and the working environment and to offer guidelines concerning how such problems can be solved; second, to illuminate how the specific nature of work and the working environment is intimately connected to the relation between the employee and the employing entity, as set forth in an employment contract, and how the form and content of such contracts are, among other things, determined by culturally and socially established ideas. The normative question to be addressed is thus: which of these ideas should be maintained? This can be seen as a second-order, or more fundamental, ethical question whose answer depends on determining which normative principles are right. An additional aim of this thesis is thus to illuminate that the contract relation has relevance to practical ethical problems in the workplace context in this second-order mode. The thesis consists of an Introduction and five papers. In Paper I (written together with Sven Ove Hansson) we argue that employees have a prima facie right to privacy, but that this right can be overridden by competing moral principles that follow, explicitly or implicitly, from the contract of employment. A set of ethical criteria is developed and summarized in the form of a guideline for determining the moral status of infringements into workplace privacy. In Paper II these criteria are applied to three broad classes of privacy-intrusive workplace practices: (1) monitoring and surveillance, (2) genetic testing, and (3) drug testing. In relation to some scenarios on these themes, it is shown that it is possible to handle such practical ethical problems systematically by way of the proposed guideline. Paper III deals with the fact that employees are protected by health and safety standards that are less protective than those that apply to the general public. Emphasis is put on the distinction between exposure and risk, and this distinction is claimed to be a key determinant for the relevance of arguments put forward in support of such double standards. In Paper IV the nature of the contract of employment is explored from an ethical point of view. An argument is developed against the claim that (a) the individual’s freedom of decision and (b) the practice of institutional arrangements are sufficient to justify a contract of employment. Paper V questions the standpoint that the voluntariness of the contracting parties in an employment relationship has substantial value. One overarching issue concerns the meaning of voluntariness in the employment context, another, its normative importance. It is argued that it is indeterminate exactly where the line should be drawn between voluntary and non–voluntary agreements in this context. Concerning the latter issue, it is claimed that even if we were able to draw such a line, this fact does not tell us anything about the normative importance of the voluntariness condition, nor how much normative weight we should assign to the fulfilment of its conditions in the workplace context. / QC 20100915

<p>The purpose of this thesis is to broadly determine the influence of the Constitution on the South African labour environment and to do so from the perspective of the labour rights of workers who fall outside the ambit of the traditional common law contract of employment. An examination of the Constitution&rsquo / s influence will involve a consideration of various aspects including: (i) The evolution of the concept of employee and the contract of employment / (ii) The impact of the Constitution on South African labour relations and labour laws / (iii) The purposive interpretation of legislation / (iv) An outline of the &lsquo / Kylie&rsquo / CCMA ruling and Labour Court judgment / (v) The current legal position of prostitution in South Africa / (vi) The requirements for a meaningful transformation in the legal treatment of sex workers particularly as regards their entitlement to the protections afforded to vulnerable workers provided in the LRA.</p>

<p>The purpose of this thesis is to broadly determine the influence of the Constitution on the South African labour environment and to do so from the perspective of the labour rights of workers who fall outside the ambit of the traditional common law contract of employment. An examination of the Constitution&rsquo / s influence will involve a consideration of various aspects including: (i) The evolution of the concept of employee and the contract of employment / (ii) The impact of the Constitution on South African labour relations and labour laws / (iii) The purposive interpretation of legislation / (iv) An outline of the &lsquo / Kylie&rsquo / CCMA ruling and Labour Court judgment / (v) The current legal position of prostitution in South Africa / (vi) The requirements for a meaningful transformation in the legal treatment of sex workers particularly as regards their entitlement to the protections afforded to vulnerable workers provided in the LRA.</p>

The purpose of this thesis is to broadly determine the influence of the Constitution on the South African labour environment and to do so from the perspective of the labour rights of workers who fall outside the ambit of the traditional common law contract of employment. An examination of the Constitution&rsquo;s influence will involve a consideration of various aspects including: (i) The evolution of the concept of employee and the contract of employment; (ii) The impact of the Constitution on South African labour relations and labour laws; (iii) The purposive interpretation of legislation; (iv) An outline of the 'Kylie' CCMA ruling and Labour Court judgment; (v) The current legal position of prostitution in South Africa; (vi) The requirements for a meaningful transformation in the legal treatment of sex workers particularly as regards their entitlement to the protections afforded to vulnerable workers provided in the LRA. / Magister Philosophiae - MPhil

Temporary contracts: exposition and criticThe contract of term or fixed term or determined period constitutes one of the most frequent modalities of so-called atypical contracting. EfrénCórdova, in his famous presentation at XI World Congress of the International Society for Labor Law and Social Security (Caracas 1985), noted that, being typical the contract celebrated between an employer and a worker, to be executed to full time at the center of work and for an indefinite atypicalperiod, comes to be one that lacks any of these attributes, this is: (i) in which involves more than one employer, or (ii) the journey is partial or doesn’t fit to traditional parameters of eight hours per day and forty-eight a week at most, or (iii) performs out the usual local, or (iv) is for adefined time. It is about these lasts that is dedicated the present article. / El contrato a término o plazo fijo o de duración determinada constituye una de las modalidades más frecuentes de la llamada contratación atípica.Efrén Córdova, en su célebre ponencia en el XI Congreso Mundial de la Sociedad Internacional de Derecho del Trabajo y de la Seguridad Social (Caracas 1985), señaló que, siendo típico el contrato celebrado entre un empleador y un trabajador, para ser ejecutado a jornada completa en el centro de trabajo de aquel y por tiempo indefinido, atípico viene a ser aquél quecarece de alguno de esos atributos, esto es: (i) en el que participa más de un empleador, o (ii) la jornada es parcial o no se ajusta a los parámetros clásicos de ocho horas por día y cuarenta y ocho a la semana como máximo, o (iii) se desempeña fuera del local habitual, o (iv) es por tiempo definido.Es a estosúltimos que está dedicado el presente artículo.