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Employment
Contracts 101: Employment
Roundtable -- Stacey
Mark
This
paper summarizes the nature of different types of employment
contracts and also highlights the importance of proper interpretation
of the legal terms and agreements in the employment contracts.
The author, while explaining the lack of attention of the
employers to the employment agreements and the consequent
unfavorable court judgments that are detrimental to the interests
of the employers, distinguishes the judgments given by Oregon
courts and other courts in the US in respect of the employment
contracts. The employers can avoid the risk and litigation
by evincing keen interest and taking suitable precautions
towards the employment contracts especially in respect of
disclaimer in the employee hand book, lack of consideration,
modification in terms of contract, claims subject to preemption,
inclusion of waiver and estoppel clauses and dispute resolution
clause, etc. The author suggests that the employers pay special
attention to employment contracts with respect to certain
commitments insisted on by the employees, such as covenant
not to compete, assignment of rights agreement, arbitration
agreement, release agreement, and collective bargaining agreements
because the suits pertaining to those agreements may be awarded
in favor of the employees.
©
2007 Ater Wynne LLP. This paper was earlier printed in Ater
Wynne LLP; Attorney at Law, April 19, 2007. Reprinted with
permission.
Law
and the Economics of
the Entrepreneurship -- Simon
C Parker
This
paper discusses the relationship between law and economics
that creates a formidable influence on entrepreneurship. The
author, in this paper, reviews the important factors that
catalyze the interaction between the law and economics of
entrepreneurshipthe legal structure of entrepreneurship and
the implication of the government policy on entrepreneurship
in the areas of regulations, bankruptcy legislation, property
rights, and corruption, and the efficiency of the courts that
create an impact on entrepreneurship. Divergent views are
expressed by the researchers while explaining the relationship
between the self-employed and entrepreneurship. While the
entry regulations extend benefits to the entrepreneur, the
employment protection legislation retards entrepreneurship
by imposing burdens disproportionately on small firms. The
author suggests that if governments can overcome the entrenched
interests and institute the policies of deregulation that
do not harm their other social objectives, they may be able
to seize a precious opportunity to stimulate entrepreneurship
and the greater competitiveness by easing the burdening regulations
on small businesses. The paper encourages further research
on the interface between law and entrepreneurship by studying
more than one related legal institutions and other aspects
of legal system that have an impact on entrepreneurship.
©
2007 Simon C Parker. This paper was earlier published in Comparative
Labor Law and Policy Journal, Vol. 28, p. 695. Reprinted
with permission.
The
Constitutional Right to Bargain Collectively: The Ironies
of Labour History in the Supreme Court of Canada
-- Eric Tucker
In
June 2007 the Supreme Court of Canada held that the right
to collective bargaining is constitutionally protected under
the Charter of Rights and Freedoms' guarantee of freedom of
association. In so doing, they overruled a 20-year old line
of precedent that had rejected that very proposition. The
court rested its current position of four grounds, one of
which was that Canadian labor history supports the view that
collective bargaining had become recognized as a fundamental
right prior to the Charter. This article critically reviews
the court's labor history and argues that it erroneously asserts
that workers enjoyed a right to bargain that entailed a correlative
duty on employers to negotiate in good faith prior to the
passage of modern collective bargaining legislation during
and in the aftermath of World War II. As well, it criticizes
the court's method of selectively extracting passages from
the work of labor historians while ignoring the critical insights
their work provides. This enables the court to construct a
highly romanticized and unrealistic story of the steady progress
of labor law from repression to toleration to recognition,
and to ignore weaknesses of the current regime of industrial
legality, a thin version of which its decision protects. Finally,
the paper considers the conditions for and implications of
the court's ironic emergence as the defender of workers' collective
rights against encroachments by the state at the turn of the
21st century.
©
2008 Eric Tucker and Labour/Le Travail. This paper
was earlier printed in Labour/Le Travail, Vol. 61 (Spring),
pp. 151-180. Reprinted with permission.
A
Critical Appraisal of the Law on
Employee Provident Fund Scheme in India and Perspectives of
EPF in Malaysia and Sri Lanka -- B
Shanmugasundaram
This
paper deals with the details of the Employee Provident Fund
(EPF) schemes in India and provides a brief account of the
same in Malaysia and Sri Lanka. The EPFs in India have evolved
as welfare measures for the benefit of the employees working
in factories and other establishments under Part IV Directive
Principles of State Policy, Article 41 of the Constitution
of India. The provisions in the `Employees' Provident Fund
and Miscellaneous Provisions Act, 1952' in India are explained
in detail in this paper. The Central board of Trustees administers
three schemesEPF, EDLIS and EPS under the Act. The Second
National Commission on Labor has made certain recommendations
for the improvement of this Act. A comparative description
of the provisions in the EPF schemes in Malaysia and Sri Lanka
is also made in this paper. The author suggests that the present
eligibility criteria for this social security scheme, which
is now confined to the establishments having 20 or more employees
and also the individual employees' wage ceiling of Rs. 6,500,
is to be removed so that this scheme can also be extended
to the workers in the small-scale establishments also.
©
2008 The Icfai University Press. All Rights Reserved.
Book
Review
Discrimination at Workplace: A Critical Study --
Author:
D Sujatha, Reviewed by P Satyanarayana Prasad
Globalization
and liberalization of trade associated with the new economic
and trade policies of various countries have brought in drastic
changes in the labor market rules and regulations, employment
and immigration laws and social security policies. These developments
have paved the way for not only an increase in the flow of
trade and capital, but also an increase in job opportunities
for women. Besides the above positive features, there have
been certain undesirable consequences in the employment regime,
such as job insecurity, wage inequality, contract and permanent
employment system, and gender discrimination. Many countries
have been trying to control and combat this menace at the
workplace by enacting the laws or by revamping the existing
laws.
©
2008 The Icfai University Press. All Rights Reserved.
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