Contracts of employment are usually tailormade to employers’ needs. They are meant to bridge a gap on a casual, part-time, fixed-term or permanent basis.
The terms of such an engagement are usually outlined in the previously mentioned contract and these become binding when the parties involved sign.
To shed some light on contracts of employment, section 2 of the Employment Act defines them as โan agreement, whether oral or in writing, expressed or implied, whereby one person agrees for a wage or other benefit or both to let his labour to and to perform it under the orders of another person who agrees to hire itโ.
The said contracts are prepared by the employer and extended to the employee, giving the employer complete control over these. However, every contract must be compliant with the prevailing labour law and this is supported by section 37 of the Employment Act when it states that โwhere a contract of employment, whether made before or after the commencement of this Act, provides for conditions of employment less favourable to the employee than the conditions of employment prescribed by this Act, the contract shall be null and void to the extent that it so provides.โ
Speaking of prevailing labour laws, we are currently in a space of transition in Botswana. New labour laws are imminent, in the form of an Employment and Labour Relations Bill. These laws are set out to create a level playing field whilst making employee rights the cornerstone of every organisation.
This week, our article will focus on permanent and fixed-term employees. How does the Bill remove disparities? Read on!
Definitions
The focus will be on the definitions provided in the Bill. The contract of employment definition is more or less the same as that provided above; therefore, we will skip that. Section 2 of the above-mentioned Bill defines a fixed-term contract as โa contract in terms of which a worker is employed for a specified period; or until the completion of a specified task; or the occurrence or non-occurrence of a specified event.โ The same section goes on to define a fixed-term worker as a โworker who is employed under a fixed-term contractโ. It is worth noting that these terms are not explicitly defined in the Employment Act. Now, let us get to unearthing the sections that make fixed-term employees equal to their counterparts thus creating a fair game for all.ย
Permanent vs Fixed-Time
According to section 156(5) of the above-mentioned Bill โa fixed-term worker shall have the right not to be treated, by an employer, less favourably than the employer treats a comparable permanent worker as regards the terms of the contract of employment between such employer and the fixed-term worker, or subject such fixed-term worker to any other detriment by any act, or deliberate failure to act, by the employerโ. Section 156(6) goes on to outline the less favourable areas and they are as follows: โany period of service qualification relating to any particular condition of service; the opportunity to receive training; or the opportunity to secure any permanent position in the establishment.โ
Section 156(9)(b) goes on to make exceptions to the above when it states that โany differential treatment between a fixed-term worker compared to a permanent worker may be justified on objective grounds such as โ seniority, experience or length of service, quality or quantity of work performed, or any other criteria of a similar nature.โ
Conclusion
In conclusion, it is safe to say the Bill aims to remove any cloud of uncertainty and inequality that may exist over the above-mentioned types of employment contracts. However, in the same breath, it does appreciate some situations that may allow for inequalities to prevail. One thing is for sure, employers are to get with the program or fall off because there is a new Sheriff in town.ย
Contactsย
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