ትርጉም

የአሰሪና ሠራተኛ ህግ በመሰረቱ በአሰሪና በሰራተኛ መካከል በሚደረግ  የስራ ውል ላይ ተመስርቶ የሚፈጠሩ ግንኙነቶችን የሚመራ፣ የሚቆጣጠር ህግ  ነው ተብሎ ሊገለጽ ይችላል፡፡ አሰሪ እና ሠራተኛ የሚሉት ስያሜዎች ሲታዩ   ጠቅለል ያሉ ስያሜዎች  ስለሆኑ እንደየሁኔታው  የተለያዩ  ሕጎችን የሚጠቁሙ ሊሆኑ ይችላሉ፡፡

አንድ ወገን አሠሪ ሌላኛው ወገን ደግሞ ሠራተኛ ሊሆኑበት የሚችሉ በርካታ ዘርፎች ሲኖሩ እነዚህን ግንኙነቶች የሚመሩ የተለያዩ ህጎች ይኖራሉ፡፡ ለምሳሌ ያህል በፍትሀብሔር ሕጉ የተመለከቱተን የስራ ግንኙነቶች በአሰሪና ሰራተኛ ጉዳይ አዋጅ የማይሸፈኑ እስከሆነ ድረስ ይህው  ህግ ሲመራ የመንግሰት አስተዳደር ሠራተኞችን (civil servants) የመንግስት አሰተዳደር  ሰራተኞች ሕግ ይመራል፡፡ በሌላ በኩል ደግሞ የአሰሪና ሰራተኛ ጉዳይ አዋጅ ቁጥር 377/96 የሚመራው የአሰራሪና ሠራተኛ ግንኙነት ይገኛል፡፡ ስለዚህም ይህ አዋጅ የትኞቹን አይነት የስራ ግንኙነቶች እንደ ሚመለከት ለመለየት በተፍታታ ሁኔታ ማየቱ አግባብነት ይኖረዋል፡፡

የስራ ውል

የስራ ውል ትርጉም በ1952ቱ የፍታብሔር ሕግም በአዋጅ ቁጥረ 377/96 ስርም ተደንግጎ ይገኛል፡፡ የፍታብሔር ሕጉ ቁጥር 2512፡-

}የስራ ውል ማለት ከተዋዋዮቹ ወገን አንዱ፡ ሰራተኛው፤ ለሌላዉ ወገን ለአሰሪው አንድ ጉዝፍነት ያለው ወይም የአእምሮ ስራ በተወሰነ ወይም ባልተወሰነ ጊዜ ውስጥ አሰሪው ሊከፍለው በተገደደበት አንድ ደሞዝ በርሱ አገልግሎትና በርሱ መሪነት ስራውን ለማከናወን ግዴታ የሚገባበት ውል ነው፡፡~

በማለት ያስቀምጠዋል፡፡ ከዚህ ትርጉም የስራ ውል ሁለት ወገኞች አንዱ አሰሪ ሌላኛዉ ሠራተኛ ሆነው አሠሪው ቁጥጥር እያደረገ ሠራተኛው ለሚሰራለት የጉልበት ወይም የዕወቅት ስራ ደሞዝ የሚከፍልበት የስራ ግንኙነት የሚፈጥር ስምምነት እንደሆነ እንረዳለን፡፡ በተመሳሳይ ሁኔታ የአሰሪና ሰራተኛ ጉዳይ ሕጉ አዋጂ ቁጥር 377/96 በአንቀጥ 4/1/ ስር የስራ ውል አመሰራረትን ሲያትት፡

ማንኛውም ሰው ደመወዝ እየተከፈለው በአሰሪ መሪነት በቀጥታም ሆነ በተዘዋዋሪ መንገድ ለተወሰነ ወይም ላልተወሰነ ጊዜ ወይም የተወሰነ ስራ ለአሰሪው ለመስራት ቢስማማ በሁለቱ መካከል የስራ ውል ይመሠረታል፡፡

በማለት የስራ ውልን ትርጉም ይሰጣል፡፡ እንደሚታየው ሁለቱም ህጎች በተመሳሳይ ሁኔታ የስራ ውል ትርጉምን ያቀርባሉ፡፡

የዘርፉ ባለሞያዎች እንደሚያቀርቡት የስራ ውልን ከሌሎች ውሎች ለመለየት አምስት ሁኔታዎች መሟላታቸው ሊረጋገጥ ይገባል፡፡ እነዚህም ከሁለቱ ተዋዋይ ወገኖች አንዱ በሕጉ መሰረት አሠሪ ነው ተብሎ የሚወሰድ ሲሆን ይህ ወገን ለሚያገኘው አገልግሎት ተገቢውን ደሞዝ የሚከፍልና አገልግሎቱም በእርሱ ቁጥጥር የሚመራ ነው፡፡ ሁለተኛው ወገን አገልግሎት የሚሠጠው ሠራተኛ ሲሆን በአሠሪው ቁጥጥር  መሠረት አገልግሎት ይሰጣል፡፡ በመሆኑም አንደኛው ወገን አሠሪ፣ ሁለተኛው ወገን ሠራተኛ ሲሆን አሰሪው በቀጥታም ይሁን በተዘዋዋሪ ቁጥጥር ማድረግ መቻሉ፣ እና ደሞዝ የመክፈል ግዴታው እንዲሁም ሠራተኛው በራሱ አገልግሎት መስጠቱ የስራ ውልን ከሌሎች ውሎች በአጠቃላይ መለየት የሚያስችሉ ሁኔታዎች ሲሆኑ በተለይ የአሰሪው ቀጥታ ቁጥጥር ማድረግ እንደ ውክልና ከመሳሰሉ ሌሎች የውል ግንኙነቶች የሚለየው ነው፡፡

የአሰሪና ሠራተኛ ማንነት

ስለ ስራ ውል የተሰጠው ትርጉም አዋጅ ቁጥር 377/96 የሚመለከተው የትኞቹን የስራ ውሎች ለመሆኑ የተሟላ መልስ አይሰጥም፡፡ በመሆኑም በአዋጁ የሚገዙት የትኞቹ አሰሪዎች እና ሰራተኞች ናቸው ከሚል አቅጣጫ የአሰሪና የሰራተኛውን ማንነት መፈተሽ ያሰፈልጋል፡፡

አዋጁ አንቀጽ 2/3/ ስር  }ሰራተኛ ማለት በዚህ አዋጅ አንቀጽ 4 በተመለከተው መሰረት ከአሰሪ ጋር በቅጥር ላይ የተመሰረተ የስራ ግንኙነት ያለው ግለሰብ ነው~ በማለት አዋጁ ስለሚገዛው ሰራተኛ ማንነት ያሰቀምጣል፡፡ በመሆኑም ይህ ሰራተኛ ለአሰሪው በአሰሪው ቁጥጥር ስር አሰሪው ለሚከፈለው ደሞዝ በራሱ የጉልበት ወይም የዕውቀት አገልግሎት ለተወሰነ ጊዜ ወይም ስራ ወይም ላልተወሰነ ጊዜ የሚሰጥ ነው፡፡ ይህ ትርጉም እላይ ስለስራ ውል ባየነው ትርጉም ላይ የተመሰረተ በመሆኑ የሚጨምረው አዲስ ነገር አይታየም፡፡ በመሆኑም አዋጁ የሚመለከተው የትኛውን ሰራተኛ ነው ለሚለው ጥያቄ መፍቻነት እምብዛም አያገለግልም፡፡

በመሆኑም ጥያቄውን ከአሰሪው ማንነት አቅጣጫ ለማየት እንሞክራለን፡፡ አዋጁ በአንቀጽ 2/1/ ስር  } አሰሪ ማለት አንድ ወይም ከአንድ በላይ የሆነ ሰዎችን በዚህ አዋጅ አንቀጽ 4 በተመለከተው መሰረት ቀጥሮ የሚያሰራ ግለሰብ ወይም ድርጅት ነው፡፡~ በማለት የአሰሪን ማንነት ደንግጎ ይገኛል፡፡ ይህም ትረጉም ምንም እንኳ ወደ የስራ ውል ትርጉም የሚመራን ቢሆንም በአዋጁ የሚሸፈነው የስራ ውል የውሉ አንደኛው ወገን የሆነው አሰሪው ግለሰብ ወይም ድርጅት ሊሆን እንደሚችል በመግለጽ ድርጅት የሆነውን አሰሪ በማየት ጥያቄውን ሊፈታ የሚችል ተጨማሪ ነጥብ ሆኖ ይገኛል፡፡ በመሆኑም አሰሪው ግለሰብ ወይም ድርጅት ሲሆን የስራ ውሉ ግንኙነት በአዋጁ የሚገዛ መሆኑን አሰሪው ከነዚህ ውጭ ከሆነ እነደሁኔታው  የሌሎች ህጎች ድንጋጌዎች ተፈጻሚነት የሚኖራቸው ይሆናል ሊባል ይችላል፡፡

አሰሪው ግለሰብ በሚሆንበት ጊዜ የስራ ውል ስር ከተመለከትነው ትርጉም የተለየ የሚጨመረው ነገር ባለመኖሩ በዚሁ እናልፍና በአዋጁ መሰረት አሰሪ ሊባል የሚችል }ድርጅት~ ምን ዓይነት እንደሆነ ቀጥለን እናያለን፡፡ በአዋጁ አንቀጽ 2/2/ ስር እንደተተረጎመው }ድርጅት ማለት ለንግድ፣ ለኢንዱስትሪ፣ ለእርሻ ፣ለኮንሰትራክሽን ወይም ለሌላ ህጋዊ ዓላማ የተቋቋመ በአንድ አመራር የሚካሔድ ተቋም ነዉ፡፡~

በዚህ ትረጉም ስር አሰሪ ድርጅት ሊሆኑ ከሚችሉ ተቋማት ውስጥ የንግድ፣ የኢንዱስትሪ፣ የእርሻ፣ የኮንሰትራክሽን ተቋማት በስም ተጠቅሰው ተቀምጠዋል፡፡ እነዚህ ተቋማት በአብዛኛው ትርፋማ ለመሆን የሚቋቋሙ ናቸዉ፡፡ ከዚህ በመነሳት በአዋጁ መሰረት አሰሪ ሊሆን የሚችል ድርጅት ትርፍ ለሚያስገኝ ስራ የተቋቋመ ሲሆን ነው፡፡ በመሆኑም በአዋጁ መሰረት የሚገዛ የስራ ውል አንደኛው ወገን የሆነው አሰሪው ትርፍ በሚያስገኝ ስራ የተሰማራ ሊሆን ይገባል የሚል ክርክር ሊነሳ ይችላል፡፡

በሌላ በኩል ደግሞ አሰሪ ሊሆኑ የሚችሉት ድርጅቶች በስም የተጠቀሱት ብቻ ሳይሆኑ

… ለሌላ ሕጋዊ ዓላማ…~ የተቋቋሙትንም የሚመለከት በመሆኑ አሰሪ ድርጅት ለትርፍ ስራ የተቋቋመ ብቻ ነው ብሎ መውሰድ ይህንን  የድንጋጌውን ሓረግ }...ለሌላ ህጋዊ የትርፍ ዓላማ... ~ ወደሚል መቀየር ስለሚሆን አግባብ ያልሆነ ፍቺ ነው ሊባል ይችላል፡፡ ሌሎች ተቋማት እንዲሁም በስም የተጠቀሱት የንግድ፣ የኢንዱስትሪ፣ የእርሻ፣ የኮንሰትራክሽን ተቋማት ሆነውም ትርፍ ከማግኘት አላማ ውጭ ለሌላ ሕጋዊ አላማ ለምሳሌ ለምርምርና ልማት ( Research and Development ) ሊቋቋሙ የሚችሉበት ሁኔታ ይኖራል፡፡ ሥለዚህም አሰሪው ለትርፍ የቆመ መሆን አለበት የሚለው አቋም አግባብ አይደለም የሚል አቋም ይታያል፡፡

የአዋጁ የተፈጻሚነት ወሰን

ከላይ እንደተገለጸው የተለያዩ ዓይነት በቅጥር ላይ የተመሰረቱ የስራ ግንኙነቶች ይኖራሉ፡፡ ከነዚህ ውስጥ ይህ አዋጅ በየትኞቹ ላይ ተፈጻሚነት ሊኖረው እንደሚችል በዋነኝነት የሚመራው የአዋጁን የተፈጻሚነት ወሰን የደነገገው አነቀጽ 3 ነው፡፡ ይህ ድንጋጌ ሶስት ቁምነገሮችን ያቀፈ ሲሆን እነሱም በሶስቱ ንዑሳን አንቀጾች ስር በተናጠል ስፍረው እናገኛቸዋለን ፡፡

የመጀመሪያው ንዑስ አንቀጽ፡ በንዑስ አንቀጽ 2 ስር በበስተቀርነት የተደነገጉት እንደተጠበቁ ሆነው ይህ አዋጅ በአሰሪና ሰራተኛ መካከል በሚደረግ በቅጥር ላይ በተመሰረተ የስራ ግንኙነት ላይ ተፈጻሚ እንደሚሆን ያመለክታል፡፡ ስለዚህም በቅጥር ላይ የተመሰረተው ግንኙነት በአንቀጹ ንዑስ አንቀጽ 2 ስር ከተዘረዘሩት ውስጥ የሚወድቅ ከሆነ የዚህ አዋጅ ድንጋጌዎች የማይፋጸሙባቻው መሆኑን በአንድ መልኩ ከዚህ ድንጋጌ ስንረዳ በሌላ መልኩ ደግሞ ከነዚህ ውጭ ባሉ በአሰሪና ሰራተኛ መካካል በሚፈጠሩ ማንኛውም ግንኙነት ላይ አዋጁ ተፈጻሚነት እንደሚኖረው እንረዳለን፡፡

ሁለተኛው የአንቀጹ ዋና ፍሬ ነገር በንኡስ 2 ስር የተደነገገው ሲሆን ይህም ምንም እንኳ ግንኙነታቸው በቅጥር ላይ የተመሰረተ ቢሆንም በዝርዝር በሚያስቀምጣቸው የስራ ግንኙነቶች ላይ አዋጁ የማይፈጸም መሆኑን የሚያመለክት ነው፡፡ እነዚህም ለአስተዳደግ ሲባል፡ ከህመም ለመዳን፡ ወይም እንደገና ለመቋቋም፤ ለትምህርትና ለስልጠና (የሙያ መልምጃ ትምህረትን ሳይጨምር) የሚደረጉ የስራ ውሎችን፡ የስራ መሪን ፣ ለትርፍ በሚካሔድ ስራ ላይ ያልተመሰረተ የግል አገልግሎት ቅጥርን ፤ በልዩ ሕግ የሚተዳደሩ እንደ የጦር ኀይል ባልደረቦችን፡ የመንግስት አስተዳደር ሰራተኞችን፡ ዳኞችን፡ ዐ/ሕጎችን፡ ፖሊሶችን እና ሌሎችንም እንዲሁም በራሱ የንግድ ስራ ወይም በራሱ የሙያ ኀላፊነት የሚሰራ ስራ የሚያከናውን ተዋዋይ ያለበት ግንኙነቶች ናቸው፡፡ በመሆኑም አዋጁ በነዚህ ግንኙነቶች ላይ  የማይፈጸም መኆኑን ያመላክተናል፡፡

ሦስተኛው የአንቀጹ ፍሬ ነገር የስራ ግንኙነቱ በንዑስ አንቀጽ  ሁለት ስር የሚወድቁ ባለመሆናቸዉ በአዋጁ አንቀጽ 1 መሰረት በቀጥታ ሊፈጸምባቸው የሚችል ቢኆንም በንኡስ አንቀጽ 3 ስር በተገለጹት ሁኔታዎች መሰረት ከአዋጁ ሽፋን ውጭ ሊደረጉ የሚችሉ የስራ ግንኙነቶችን የሚመለከት ነው፡፡ በዚሁ መሰረት ኢትዮጰያ ውስጥ የሚሰሩ የድፒሎማትክ ሚሲዮኖች ወይም አለምአቀፍ ድርጅቶች ከኢትዮጵያውያን ጋር የሚመሰርቱት የስራ ግንኙነት የሚኒስትሮች ምክር  ቤት በሚያወጣው ደነብ መሰረት ወይም ኢትዮጵያ በምትፈርማቸው አለም አቀፍ ስምምነቶች መሰረት በአዋጁ ላይሸፋኑ ይችላሉ፡፡ በተጨማሪም የሚኒስትሮች ምክር ቤት በሚያወጣው ደነብ መሰረት በሃይማኖት ወይም በበጎ አድራጎት ድርጅቶች የሚመሰረቱ ግንኙነቶች ፤ እንዲሁም በግል አገልግሎት የስራ ሁኔታ የሚመሰረቱ የስራ ግንኙነቶች ላይ አዋጁ ተፈጻሚነት እንዳይኖረዉ ሊያደርግ ይችላል፡፡

ስለዚህም በአጭሩ ሲገለጽ አዋጁ በአጠቃላይ በአሰሪና ሰራተኛ መካካል በሚቋቋም በቅጥር ላይ በተመሰረተ የስራ ግንኙነት ላይ ተፈጻሚነት የሚኖረው ቢሆንም በአዋጁ በግልጽ በተደነገጉ ሌላ ህግ በሚገዛቸው ግንኑነቶች ላይ ተፈጻሚነት አይኖረውም፡፡ በተጨማሪም አሁንም አዋጁ የሚሸፍናቸው የስራ ግንኙነቶች ሊሆኑ ቢችሉም ነገር ግን የሚንስትሮች ምክር ቤት ወይም ኢትዮጵያ የምትፈርማቸው አለም አቀፍ ስምምነቶች በሚወስኑት መሰረት ከአዋጁ ሽፋን ውጭ ሊደረጉ የሚችሉ መሆኑን ተመልክቷል፡፡

The employment relationship is a legal concept which underpins the operation of the labor market in many countries. This was confirmed particularly in the discussions on “contract labour” at the International Labour Conference in 1997 and 1998, the Conference discussion leading to the adoption of the private employment agencies Convention, 1997(No. 181), the national studies undertaken by the ILO, the Meeting of Experts on Workers in situations Needing Protection, and the 2003 Conference general discussion on the scope of the employment relationship. It is also reflected in a significant number of international labour standards: some ILO Conventions and Recommendations cover all workers without distinction, while others refer specifically to independent workers or self-employed persons, and others apply only to persons in an employment relationship

The employment relationship continues to be the predominant framework for work in many countries. Moreover, a study published in 2000 found that in the industrialized countries, in particular, the employment relationship is not just predominant but is proving durable, contrary to persistent reports that major changes in employment relationships have led to less stability and greater numerical flexibility. Another study published in 2001 founded similar results in six transition countries.

Of course, the situation with regard to the employment relationship is not the same in every country. Where the formal economy absorbs only a very small part of the population and where high unemployment swells the ranks of the self-employed, the reality tends to be different. Even in these cases, however, wage earners may represent a significant proportion of the working population in quantitative terms.

The widespread emergence of new forms of employment is frequently referred to in the context of changes in the organization of work and flexible work arrangements. However, new forms of employment may be understood in different ways and mean different things, especially with respect to the legal implications, and for this reason an important distinction needs to be made at this point.

People may provide their labour either within the employment relationship under the authority of an employer and for remuneration or within a civil/commercial relationship independently and for a fee. Each of these relationships has certain characteristics which vary from one country to another and determine to what extent the performance of work falls within an employment relationship or a civil/commercial relationship.

In some countries and in some sectors more than others, employment relationships have become more diversified. They have become more versatile and, alongside traditional full-time employees, employers are increasingly employing workers in other ways which allow them to use their labour as efficiently as possible. Many people accept short-term employment, or agree to work certain days of the week, for want of better opportunities. But in other cases, these options are an appropriate solution, both for the worker and for the enterprise. Recourse to various types of employment is in itself a legitimate response to the challenges faced by enterprises, as well as meeting the needs of some employees for more flexible work arrangements. These various types of work arrangements lie within framework of the employment relationship.

At the same time, there are civil or commercial contractual relationships under which the services of self-employed workers may be procured, but on terms and conditions which differ from those within an employment relationship. Frequent recourse to such contractual arrangements has become increasingly widespread in recent years. From a legal standpoint, these arrangements lie outside the framework of the employment relationship.

The determination of the existence of an employment relationship should be guided by the facts, and not the name or form given to it by parties. That is why the existence of an employment relationship depends on certain objective conditions being met and not on how either or both of the parties describe the relationship.  This is known in law as the principle of the primacy of fact, which is explicitly enshrined in some national legal systems. This is also frequently applied by judges in the absence of an express rule.

Various factors are used in many countries to determine the existence of an employment relationship. While these factors vary, some of the more common factors include the level of subordination to the employer, work for the benefit of another person, and work under instruction. In some cases, the law goes up one step further, and classifies certain workers as employees whose situation could be ambiguous, or provides for a presumption in their case that there is an employment relationship. Conversely, legislation may specify that certain contractual arrangements are not employment relationships.

In some legal systems, certain indicators are relied on to identify whether or not the relevant factors are present to determine the existence of an employment relationship. These indicators include the extent of integration in an organization, which controls the conditions of work, the provision of tools, materials and machinery, the provision of training and whether the remuneration is paid periodically and constitutes a significant proportion of the income of the worker. In common law countries, judges base their rulings on certain tests developed by case law, for example the tests of control, integration in the enterprise, economic reality, who bears the financial risk, and mutuality of obligation. In all systems, the judge must normally decide on the basis of the facts, irrespective of how the parties construe or describe a given contractual relationship.

The existence of a legal framework regulating the provision of labour does not, of course, preclude disagreement when it comes to the examination of specific cases to determine whether an employment relationship exists. Indeed, this is a frequent occurrence, given the proliferation and great diversity of situations in which the worker’s status is unclear.

 

The employment relationship and workers’ protection

Context of the lack of protection

As mentioned above, the Meeting of Experts in May 2000 highlighted the lack of protection of workers in certain situations in which the legal scope of the employment relationship did not accord with the realities of working relationships. The context in which this lack of protection has arisen varies considerably from one region to another and from one country to another, but in all cases it is linked to significant changes in the structure of employment. Some of these changes are associated with globalization, technological change and transformation in the organization and functioning of enterprises, often combined with restructuring in a highly competitive environment. In the words of the World Commission on the Social Dimension of Globalization, “globalization has set in motion a process of far-reaching change that is affecting everyone.” The impact of these changes is very uneven in terms of the degree to which they benefit countries, industries and enterprises.

Changes in workers’ status and mass redundancies, especially in developing countries or those in transition, are frequently related to major financial crises, external debt, structural adjustment programmes and privatization. These realities have been reflected in a drastic reduction in countries’ financial capacity and deterioration in conditions of employment and work. In this context, the growth of the informal economy and undeclared employment has been especially significant.

Associated with this development, changes in the structure of the workforce have been accentuated by migration from one country to another or from one sector of the economy to another. Other factors include a strong shift to services, greater participation of women, higher skill of levels of young people in certain countries and deskilling of workers in others. Changing lifestyles, education levels and expectations also lead to workers demanding more flexibility. These changes inevitably influence workers’ attitudes and the way in which they cope with finding and keeping a job.

Many enterprises, for their part, have organized their activities so as to utilize labour in increasingly diversified and selective ways, including various kinds of contracts, the decentralization of activities to subcontractors or self-employed workers, or the use of temporary employment agencies. These arrangements are encouraged by rapid developments in technology and new management systems in response to the growing demands of competition. This kind of flexibility has frequently been preceded or accompanied by legislative and institutional reforms to enhance the supply and demand for labour or to promote self-employment with the aim of stimulating job creation.

Repercussions of the lack of protection

Above all, of course, the lack of labour protection has adverse consequences for workers and their families. At the same time, however, the absence of workers’ rights or guarantees can be counterproductive to the interests of the enterprise itself and have a negative impact on society generally. Moreover, there is some evidence indicating that these changes affect women more than men. Workers in these situations not only lose their rights under labour law, but also have difficulty securing the protection of the competent inspection services or seeking redress through the labour courts. In many countries, they are completely excluded from or on the fringe of social security protection and receive less favorable benefits than those workers recognized as employees.

The lack of labour protection of workers can also affect employers, to the extent that it undermines productivity and distorts competition between enterprises, both at national and sectoral or international level, often to the detriment of those who comply with the law. The lack of legal certainty can also result in judicial decisions reclassifying “self-employed” workers as employees, with considerable unforeseen economic consequences for enterprises. At the same time, the reality of work without any prospect of stability or promotion can ultimately make workers lose their commitment to the enterprise and contribute to an increasing and costly labor turnover.

Another dimension of the lack of labour protection is the neglect of training, including training for work in environments where there are inherent risks. Enterprises can be reluctant to invest in training workers who will probably not be with them for long. The user enterprise is unlikely to train the workers supplied by another firm, except for very specific purposes. Untrained workers are more vulnerable to accidents in the workplace and can hamper the competitiveness of the enterprise. In addition, in some sectors which have large numbers of unprotected workers, the negative image can create serious problems of recruitment and retention of workers. The construction industry is one example of such a sector.

The lack of labour protection can also impact on the health and safety of third parties and society in general. Some accidents, such as those caused by heavy vehicles or major accidents in industrial plants, have caused damage to the environment, as well as injuries and fatalities to third parties. The link between accident risks and the lack of workers’ protection has also been observed in situations where there is extensive use of subcontracting. The issue is not subcontracting itself but its improper use, which can create or aggravate risks.

Uncertainty with regard to the law

Disputes concerning the legal nature of a relationship for the provision of labour are increasingly frequent. The employment relationship may be objectively ambiguous or disguised. Both situations create uncertainty as to the scope of the law and can nullify its protection.

The problems faced by workers involved in “triangular” employment relationships pose different legal questions. These are workers employed by an enterprise (the “provider”) who perform work for a third party (the “user”) to whom their employer provides labour or services. For these employments status is not in doubt, but they frequently face difficulties in establishing who their employer is, what their rights are and who is responsible for them.

Changes in the legal status of workers, whether real or apparent, seem to be a sign of the times and are commonly observed not only in traditional sectors such as transport (truck drivers, taxi drivers), construction and clothing, but in new areas as well, such as sales stuff in department stores, or certain jobs in wholesale distribution or in private security agencies, although there are considerable differences from one country to another and from region to region.

Objectively ambiguous employment relationships

In a standard employment relationship, the worker’s status is not normally open to doubt. In some cases, however, a worker may have a wide margin of autonomy and this factor alone may give rise to doubt as to his or her employment status. There are situations where the main factors that characterize the employment relationship are not apparent. It is not a case of a deliberate attempt to disguise it, but rather one of genuine doubt as to the existence of an employment relationship. This may occur as a result of the specific or complex form of the relationship between workers and the persons to whom they provide their labour, or the evolution of that relationship over time. Such situations may occur with persons who are normally self-employed, such as electricians, plumbers and computer programmers, and who gradually enter to a permanent arrangement with a single client.

In other cases, especially in work environments affected by major changes, it is possible and sometimes necessary to resort to a range of flexible and dynamic employment arrangements which can be difficult to fit into the traditional framework of the employment relationship. A person may be recruited and work at a distance without fixed hours or days of work, with special payment arrangements and full autonomy as to how to organize the work. Some workers may never even have set foot in the enterprise if, for example, they have been recruited and work via the Internet and are paid through a bank. However, perhaps because they use equipment supplied by the enterprise, follow its instructions and are subject to subtle but firm control, it may be that the enterprise quite naturally considers them as employees. The emergence of “e-lancers” (electronically connected freelancers) is another phenomenon which is challenging the traditional employment framework.

Midway between the employment relationship and self-employment, there are “economically dependent workers” who are formally self-employed but depend on one or a few “clients” for their income. They are not easy to describe, let alone quantify, because of the heterogeneous nature of the situations involved and the lack of a definition or statistical tool.

In cases where the contract is clearly intended to procure the services of a self-employed worker, it is in employers’ interest to make sure that they have not misclassified the worker, as they can be held financially liable if the authorities find that the worker is in fact an employee.

Disguised employment relationships

A disguised employment relationship is one which is lent an appearance that is different from the underlying reality, with the intention of nullifying or attenuating the protection afforded by the law or evading tax and social obligations. It is thus an attempt to conceal or distort the employment relationship, either by cloaking it in another legal guise or by giving it another form. Disguised employment relationships may also involve masking the identity of the employer, when the person designated as an employer is an intermediary, with the intention of releasing the real employer from any involvement in the employment relationship and above all from any responsibility to the workers.

The most radical way to disguise the employment relationship consists of giving it the appearance of a relationship of a different legal nature, whether civil, commercial, cooperative, family-related or other. Some of the contractual arrangements most frequently used to disguise the employment relationship include a wide variety of civil and commercial contracts which give it the semblance of self-employment.

The second way to disguise the employment relationship is through the form in which it is established. While the existence of an employment relationship is not in question, the nature of the employment relationship is intentionally misrepresented so as to deny certain workers’ rights and benefits. For the purposes of this report, such contract manipulation amounts to another type of disguised employment relationship, resulting in a lack of protection for the workers concerned. This is the case, for example, of contracts concluded for a fixed term, or for a specific task, but which are then repeatedly renewed, with or without a break. The most visible effect of this type of contract manipulation is that the worker doesn’t acquire the rights and obtain the benefits provided to employees by labour legislation or collective bargaining.

The trend towards replacing the employment contract with other types of contract in order to evade the protection provided the Termination of Employment Convention, 1982 (No. 158), was noted by the ILO Committee of Experts on the application of conventions and Recommendations in 1995.

“Triangular” employment relationships

As already mentioned, “triangular” employment relationships occur when employees of a person (the “provider”) work for another person (the “user”). A wide variety of contracts can be used to formalize an agreement for the provision of work. Such contracts can have beneficial effects for the provider’s employees in terms of employment opportunities, experience and professional challenges. From a legal standpoint, however, such contracts may present a technical difficulty as the employees concerned may find themselves interacting with two (or more) interlocutors, each of whom assumes certain functions of a traditional employer.

There are also, of course, cases of objectively ambiguous or disguised “triangle” employment relationships. A “triangular” employment relationship normally presupposes a civil or commercial contract between a user and a provider. It is possible, however, that no such contract exists and that the provider is not a proper enterprise, but an intermediary of the supposed user, intended to conceal the user’s identity as the real employer.

“Triangular” employment relationships have always existed, but this phenomenon is now on the increase. The national studies identified a growing tendency among enterprises in many countries to operate through other enterprises or with their collaboration. In these situations, workers provided by different enterprises can be found working on the user’s own premises or outside, even in a different country “Triangular” employment relationships can take various forms. The best known is the use of contractors and private employment agencies.

In an employment relationship, there is usually no doubt about the identity of the employer where workers deal with only one person. This person is the one who hires the worker or who performs the normal functions of an employer: assigning tasks, providing the means to perform them, giving instructions and supervising their performance, paying wages, assuming risks, making profits and terminating the employment relationship. The situation may be different, however, in a “Triangular” employment relationship, when these roles are assumed separately or jointly by more than one person and anyone or a number of them may be perceived as the employer, in which case the employee may reasonably wonder: who is in fact my employer?

In particular, workers may not know, for example, from whom exactly to claim payment of remuneration or compensation for an accident at work, and whether they can file a claim against the user when the direct employer disappears or becomes insolvent. Doubt as to the identity of the employer, or the involvement of the user in the employment relationship, leads to the following key questions in the case of “triangular” relationships: what are the worker’s rights – are they the rights agreed by the employee with his or her employer (the provider), or those of the employees employed by the user, or a combination of the two?

Workers may wonder who is responsible for their rights. The logical answer, which is normally consistent with the law, is that employers are primarily responsible for the rights of their employees, whether they are a contractor, an employment agency, a cooperative or any other employing enterprise or entity. However, the role of the user can be crucial with respect to ensuring respect to these rights (such as limits on working hours, rest breaks, paid leave, etc.). There are laws which in some circumstances also assign a measure of responsibility to the user, as the person who benefits directly from the labour of the worker and who often appears to be an employer or someone similar to an employer. Depending on the circumstances and national law, the employer (or provider) and the user may bear joint and several liability, so that the worker can claim against both or either of them without distinction. In other circumstances, the user bears subsidiary liability, in the sense that a claim may only brought against the user in the event of non-compliance by the provider. A number of ILO instruments also address this subject.

The determination of the identity of the employer and other possible parties to “triangular” employment relationships, of the workers’ rights and of the persons responsible for ensuring those rights raises legal issues which are not easy to resolve. However, the major challenge lies in ensuring that employees in such a relationship enjoy the same level of protection traditionally provided by the law for employees in a bilateral employment relationship, without impeding legitimate private and public business initiatives.

In summary, in cases of “triangular” employment relationships, employees are frequently faced with multiple interlocutors. In such circumstances, it is essential that such employees know who the employer is, what their rights are, and who is responsible for them. It is equally important to determine the position of the user with respect to the employees of the provider enterprise. A balanced and constructive approach to the question should take into account the legal difficulties involved, and the legitimate interests concerned.

Closing the gap

In response to the growing divergence between the law and the reality of the employment relationship, measures need to be taken to close this gap. The objective should be to update and clarify the law governing the employment relationship so as to facilitate recognition of the existence of an employment relationship, and deter attempts to disguise it. Given the proliferation of objectively ambiguous and disguised situations and the growth of “triangular” relationships, member states, with the involvement of the social partners, could examine their legislation so as to identify any deficits in the light of their own specific problems and comparative law. This would enable them to determine the nature and extent of the measures needed. The outcome of this exercise should be to enable the laws on the employment relationship to be regularly updated as part of an ongoing and dynamic process.

Clarifying the scope of the law

The first part of the strategy would be aimed at clarifying, supplementing and stating as precisely as possible the scope of the law. At this stage, it could be useful to examine the most common forms of disguised employment relationships and cases in which it is most difficult to determine whether there is an employment relationship or a civil or commercial relationship. The task would consist of remedying the technical deficiencies in the legislation in order to address objectively ambiguous cases and to tackle the phenomenon of disguised employment relationships. In relation to “triangular” relationships, the objective would be to clarify the law so that the employees know who the employer is, what their rights are and who is responsible for them.

55. Comparative law contains a wealth of notions and legal constructs as to what is meant by an employment relationship and the factors and indicators used for recognizing it. In addition, there are mechanisms and institutions to enforce the law and guarantee workers’ rights. These generally enable the regulation of the employment relationship to operate smoothly so that the status of the worker can usually be determined. However, the law does not cover all of these aspects equally or with the same degree of precision and effectiveness in all countries.

Adjusting the limits of the legislation

Clarification alone, however, may not be enough to regulate cases which do not fall within the current scope of the legislation. This calls for certain adjustments to the limits of the legislation. This can be done in a number of ways. First, in the case of objectively ambiguous relationships, where some of the features of the employment relationship are blurred or absent, the law needs to be adjusted so as to enable a clearer identification of the employment relationship, where it exists. Second, the legislation can be extended to include categories of employees or sectors that are explicitly or implicitly excluded from the scope of the law. These exclusions frequently apply to employees in small and micro-enterprises and export processing zones (EPZs). Furthermore, in some countries, labour laws do not have general coverage, but apply only to certain employees. In such circumstances, progressive steps could be taken towards a more general application of the legislation concerned. Third, the scope of the law may be adequate, but it may be narrowly interpreted by the courts. The development of factors and indicators for determining the existence of an employment relationship can promote consistency and predictability in courts decisions.

Balancing equality and adaptability

The lack of labour protection raises questions of equity, on the one hand, and flexibility or adaptability, on the other. A balance between the two must be sought through social dialogue aimed at building a broad consensus. Employers are constantly faced with the challenge of survival in a competitive global environment and legitimately seek viable solution among the range of options offered by different forms of employment. However, it is difficult for enterprises to improve their productivity with a poorly trained, demotivated and rapidly changing workforce.

Balancing equity and adaptability is at the very heart of the ILO’s Decent Work Agenda, which offers a framework for reconciling the different interests and reaching a consensus through social dialogue. Countries have found different institutional and policy responses to reconcile these diverging interests. For instance, a number of European countries have moved away from a situation where flexibility creates insecurity to one in which security promotes flexibility.

Ensuring compliance

The problem of objectively ambiguous, disguised or “triangular” employment relationships cannot, however, be entirely attributed to lack of clarity and the problems relating to the scope of the law. Another contributing factor, which is particularly serious in some countries, is failure to comply with the law, accompanied by poor enforcement.

The problem of non-compliance is particularly serious in some developing countries, although it also occurs in industrialized countries. The studies carried out confirm a commonly expressed view that traditional mechanisms to enforce labour laws are not used as they should be. In particular, mechanisms and procedures for determining the existence of an employment relationship and establishing the identity of the persons involved are generally insufficient to prevent infringements of labour law or to safeguard workers’ right. Problems of compliance and enforcement are particularly acute in the informal economy.

Enforcement of labour law by the administrative and judicial authorities is affected by financial constraints in most countries. Moreover, the limited powers of these authorities and their enforcement mechanisms, such as they are, often mean that they are unable to discharge their obligations.

Labour inspectorates frequently face considerable difficulties in carrying out their tasks. In some countries, the probability that an inspector will visit a particular enterprise, detect shortcomings, impose corrective measures and enforce them is very low or nonexistent. Particular difficulties arise where the premises are extensive or located in remote places and, for different reasons, in small and micro-enterprises. The situation is even more uncertain as regards the possibility of action by labour inspectors concerning workers in objectively ambiguous or disguised employment relationships, even in countries where inspectors are empowered to identify such cases and remedy them.

In principle, all workers have access to the courts. In practice, however there are countries where restrictions on access to the courts are considerable and few workers can afford to enter into long, costly and inevitably uncertain judicial proceedings. Rarer still, of course, are those workers who, while still working, resort to the courts for a ruling on their employment status.

Improving protection for workers within the employment relationship requires that the mechanisms and institutions established to enforce compliance with labour law function effectively. Each country, depending on the deficits in its legal system and in the organization and functioning of its labour institutions, should consider streamlining the task of labour inspection and making it more efficient, with advisory and enforcement powers appropriate to present-day circumstances.

Definition

Employment relation is established through a contract of employment and it shall be deemed formed where a person (the employee) agrees, directly or indirectly, to perform work for and under the authority of another (the employer) for a definite or indefinite period or piece work in return for wages. Let us try to examine the elements of this definition.

Agreement

The definitional elements of an employment contract indicate that agreement is the basis for employment relation and this automatically excludes forced labour from the ambit of employment relations. Hence a person cannot be compelled to enter into an employment relation. Thus in this sense it is a voluntary engagement.

Nevertheless, it is important to note that agreement to employment relation may be expressed directly or indirectly. For instance, a person may directly or personally negotiate with his/her employer and conclude a contract of employment thereafter. The other possibility is public/private employment agencies may serve as intermediaries between the employer and the employee with a view to facilitating their relations. Thus the agreement may be expressed personally or indirectly through employment agencies.

Performance of work

The other element under the definition is the agreement from the side of the employer is “to perform work for of the employer”. The employee will be required to render personal service. In this sense, the employee is committing him/her/self to render personal service for the benefit of the employer. Unlike a contract of sale where the seller delivers something tangible to the buyer, in the present case, the employee is making his service available (i.e. something intangible) to the benefit of the employer. Through this arrangement the employee is putting his skill and working capacity at the disposal of the employer. Although the employee may express his/her agreement indirectly, his/her service is to be provided personally. S/he cannot, as of right, delegate another person to render service in his/her behalf.

Under the authority of the employer

The employee will be required to render the said service within the frame work of the instruction of the employer. This in effect means the employer will possess the prerogative to direct, supervise and control the manner and performance of the employee. Consequently, the employer will have the power to determine what work to be done; when to be done; where to be done; how to be done and with whom to be done.

It is important to note, however, that the authority granted to the employer over the employee is not meant and intended to establish a master and servant relationship. On the contrary, it is within the framework of the terms of the contract that the scope of the authority of the employer over the employee will be determined.

Working under the authority of the employer differentiates an employee from an independent contractor. An independent contractor performs work for the benefit of his/her client but in performing such work s/he is not under the strict direction of the client. The client in such cases is interested on the result and not on the manner how the result was achieved. For example, if a client seeks the service of a tailor to make him a three pieces suit, he will not have an interest where and how it is made so long as the agreed date and quality of the product is maintained. But in case of an employer, he is not only interested on the result but also on the manner of arriving at such result. Therefore it is safe to conclude that where the “employer” has no or minimal authority over his “employee” the relationship between them is client-independent contractor relationship not employer-employee.

Length of employment

As regards to duration, a contract of employment could be entered into either for definite period (for six months, for one year etc), or for indefinite period (i.e. for the life of the company), or for a specific assignment (to unload sacks of grain from a truck). As we all know marriage, in principle, is a life long engagement. This is not the case for employment relation. There is no as such life long contract of employment.

Wage

Last but by no means is least; among the definitional elements is wage. As the employee is committing himself/herself to render personal service for the benefit and under the authority of the employer, the employer will have a corresponding duty to perform. It will be expected and required to pay wage to the employee. Hence employment relation is not a pro bono service. On the contrary, it is a service in return for wages.

The mode of payment for wage could be in cash or in kind though ordinarily payment is effected through cash. As regards to the interval of payment, it could be in daily, weekly, bi-monthly, monthly etc. basis or it could be assessed on piece rate. The manner or the mode of payment will not have any effect on the relationship of the parties.

From the above discussions, we tried to highlight the elements of a contract of employment. If and when these elements are cumulatively satisfied, the status of the parties will be held as employer and employee relationship.

(Extracts from an ILO document on “Employment relationship”)

The employment relationship: Overview of challenges and opportunities

The employment relationship is a legal notion widely used in countries around the world to refer to the relationship between a person called an “employee” (frequently referred to as a worker”) and an “employer” for whom the “employee” performs work under certain condition in return for remuneration. It is through the employment relationship, however defined, that reciprocal rights and obligation created between the employee and the employer. The employment relationship has been, and continuous to be, the main vehicle through which workers gains access to the right and benefit associated with employment in the area of labour law and social security. It is the key point of reference for determining the nature and extent of the employers’ rights and obligations towards their workers.

The profound changes occurring in the world of work, and particularly in the labour market, have given rise to new forms of relationship which do not always fit within the parameters of the employment relationship. While this has increased flexibility in the labour market, it has also led to a growing number of workers whose employment status is unclear and who are consequently outside the scope of the protection normally associated with an employment relationship. In 2004, the Director-General of the International Labour Office described  the challenge as follows:

The state has a key role to play in creating an enabling institutional framework to balance the need for flexibility for enterprise and security for the workers in meeting the changing demands of a global economy … At the heart of  national policies to meet the social challenges of globalization is a dynamic strategy for managing labour market change.

The legal framework governing the employment relationship is an important component of national policy for managing labour market change taking account of the need for flexibility and security.

The question of the employment relationship has, in one form or another, been on the agenda of the International Conference for over a decade. The following is an overview of the evolution of these discussions culminating in general on discussions in 2003. This chapter also summarize the most  pertinent issues in the national studies conducted in 1999-2001, which formed the basis of report prepared by the Office for the 2003 general discussion and which are comprehensively analyzed and referenced in that report.

Evolution of the discussion at the ILO on the employment relationship

The ILO has taken the employment relationship as the reference point for examining various types of work relationship. In recent years, the Conference has held discussion on self- employed workers, migrant workers, home workers, private employment agency workers, child workers, workers in cooperative and workers in the informal economy and in the fishing sector. It has also addressed work relationships in the course of discussion on social security and maternity protection.

In 1997 and 1998, the Conference examined an item on “contract labour”. The original intention of the Conference discussion on “contract labour” was to protect certain categories of unprotected workers through the adoption of a Convention and a Recommendation, but the proposal to adopt a Convention and a Recommendation failed.

However, at the end of the second discussion in 1998, the Conference adopted a resolution in which it invited the Governing Body of the ILO to place the issue on the agenda of a future session of the Conference with a view to the possible adoption of a Convention supplemented by a Recommendation if such adoption was, according to the normal procedures, considered necessary by that Conference. The Governing Body was also invited to instruct the Director-General:

To hold meetings of experts to examine at least the following issues arising out of the deliberation of the Committee on Contract Labour:

which workers, in the situation that have began to be identified in the Committee, are in need of protection;

appropriate ways in which such workers can be protected, and the possibility of dealing separately with the various situations;

how such workers would be defined, bearing in mind the different legal systems that exist and language  differences.

It is noteworthy that in the various debates mentioned above, delegates from all regions repeatedly alluded to the employment relationship, in its various forms and with different meaning, as a concept familiar to all.

In accordance with the 1998 resolution, a tripartite Meeting of Experts on Workers in situations needing protection was held in Geneva in May 2000. The common statement adopted by the Meeting noted that the global phenomenon of transformation in the nature of work had resulted in situations in which the legal scope of the employment relationship (which determines whether or not workers entitled to be protected by labour legislation) did not accord with the realities of working relationships. This had resulted in a tendency whereby workers who should be protected by labour and employment law were not receiving that protection in fact or law. The scope of regulation of the employment relationship did not accord with reality, which varied from country to country, and within countries, from sector to sector. It was also evident that while some countries had responded by adjusting the scope of the legal regulation of the employment relationship, this had not occurred in all countries.

The common statement also noted that various country studies had greatly increased the pool of available information concerning the employment relationship and the extent to which dependent workers had ceased to be protected by labour and employment legislation. The meeting agreed that all countries should adopt or continue national policy in terms of which they would, at appropriate intervals review and, if appropriate, clarify or adapt the scope of the regulation in line with current employment realities. The review should be conducted in a transparent manner with participation by social partners. The experts further agreed that ILO could play a major role in assisting countries to develop policies to ensure that laws regulating the employment relationship cover workers needing protection.

Further to the resolution adopted by the Conference in 1998, the Office undertook a series of national studies. The objective of the national studies  was to help identify and describe the principal situations in which workers lacked adequate protection, as well as the problems caused by the absence or inadequacy  of protection, and to suggest measures to remedy such situations.

The research undertaken confirmed the universal importance of the idea of the employment relationship, on which labour protection systems are largely based, while highlighting the deficiencies affecting the scope, in terms of persons covered, of the regulations governing this relationship. It also confirmed the extent and repercussions of the problems of lack of workers’ protection.

At the 91^st Session of the Conference in June 2003, a general discussion was held on the scope of employment relationship. During the discussion, many delegates emphasized that the concept of the employment relationship is common to all legal systems and traditions. There are rights and entitlements which exist under labour laws, regulations and collective agreements and which are specific to or linked to workers who work within the framework of an employment relationship. One of the consequences associated with changes in the structure of the labour market, the organization of work and the deficient application of the law is the growing phenomenon of workers who in fact employees but find themselves without the protection of an employment relationship. There was a shared concern among governments, employers and workers to ensure that labour laws and regulations are applied to those who are  in employment relationships and that the wide variety of arrangements under which work is performed by a worker can be put within an appropriate legal framework.

The Conference also recognized that the protection of workers is at the heart of the ILO’s mandate. Within the framework of the ILO’s Decent Work Agenda, all workers, regardless of employment status, should work in conditions of decency and dignity.

The Conference noted that the ILO should envisage the adoption of an international response on this topic. A Recommendation was considered as an appropriate response. The Recommendation should focus on disguised employment relationships and on the need for mechanisms to ensure that persons with an employment relationship have access to the protection they are due at the national level. Such a Recommendation should provide guidance to member states without defining universally the substance of the employment relationship. The Recommendation should be flexible enough to take account of different economic, social, legal and industrial relations traditions and address the gender dimension. Such a Recommendation should not interfere with genuine commercial and independent contracting arrangements. It should promote collective bargaining and social dialogue as a means of finding solutions to the problem at national level and should take into account recent developments in employment relationships.

As definition is a basis for understanding a certain concept, it will begin by defining what a “contract of employment” is. For this purpose and in order to possess a comparative insight on the issue, different kinds of definitions could be brought to the class discussion. Definitions to be found in dictionary and in the different legal instruments such as the Civil Code, Proc. No.64/1975, LP.No.377/2003 and the relevant provisions of the FCSP (Proc. No.515/2007) could be considered. Particularly definitional elements such as; rendering of service, for the benefit and under the direction of the employer, in return for remuneration must be highlighted.

Furthermore, since it is believed that better understanding of a concept will be attained through examining its historical development, historical development of employment law will be briefly discussed. For the purpose of this discussion, development of employment relation under the labour law and the Civil Service will be examined separately as they have their distinct route of development not only in Ethiopia but also internationally.

At this level of the discussion, history of labour movement in the industrial world of the 19^th century will be of significant help. Traditionally labour relation was considered as economic relation and was left to private regulation through contract. The role of the government in such relations was intended to be nothing more or less than enforcement of promises of the parties. Nevertheless, the principle of freedom of contract failed to bring about equitable outcome in employment relations due to the bargaining position of the parties. It should also be underlined that freedom of contract between economic unequals(i.e. capital & labour) will have the effect of perpetuating inequality. As an expression of the failure of the arrangement, organized and disorganized social unrest begun to crop up here and there. Thus the situation called for state intervention and internationally concerted action. The main areas of state intervention in this respect may be gathered from the preamble of the ILO Constitution which is reproduced herein below.

Whereas universal and lasting peace can be established only if it is based upon social justice;

And whereas conditions of labour exist involving such injustice hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required; as, for example, by the regulation of the hours of work including the establishment of a maximum working day and week, the regulation of the labour supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of equal remuneration for work of equal value, recognition of the principle of freedom of association, the organization of vocational and technical education and other measures;

Whereas also the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries;

The High Contracting Parties, moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world, and with a view to attaining the objectives set forth in this Preamble, agree to the following Constitution of the International Labour Organization:

The establishment of the ILO in 1919 and the objectives set out in the Constitution of its establishment will help in understanding the historical development. It will also be important to pin point to the reader that Ethiopia has been a member of the ILO since 1923.

It is also important to highlight the fact that employment law as a branch of law is of relatively recent origin in Ethiopian legal history. For employment law to exist, a free labour capable of freely contracting to render service is necessary. Thus employment law is a phenomenon of industrial era where freedom of contract and free movement of persons are being respected. Such freedom has been obtained with the abolishment of slavery and tenancy. Slavery as a status was legally abolished in Ethiopia, in 1942. Land lord- tenant relationship remained effective until mid-seventies of the 20^th century in Ethiopia.

For the civil service aspect of the historical development, consulting legal documents such as “An Order to provide for the creation and functions of the Imperial Ethiopian Central Personnel Agency” (Order No.23 of 1961) together with the “Regulations issued pursuant to the Central Personnel Agency and Public service order, 1961” (Regulations No.1/62) and Federal Civil Servants’ Proclamation No.262/2002 appears to be very important.

NOTES(Extract from Historical Development of Labour Law in Ethiopia); by Mehari Redae

Labour relations in Ethiopia have been very low and slow in development. The cultural, religious and legal settings have had their respective shares for such an outcome.

Culturally, the Ethiopian society’s attitude towards labour and labourers has been very discouraging. The traditional Ethiopian society despised both trade and manual work. All the remaining occupations excluding priesthood were relegated to members of the population who were thought of as a lower class. Metal work, for instance was left to one group of the population with such a low reputation that nobody dared to mingle with segment of the population.

It was by realizing this cultural attitude and its negative impact to labour development that the then emperor (King Menelik) issued a proclamation in 1908 with the following content:

Let those who insult the worker on account of his labour cease to do so. You, by your insults and insinuations, are about to leave my country without artisans who can even make the plough. Hereafter anyone of you who insults these people is insulting me personally.

This provision might serve as a testimony as to the then prevailing official Imperial position towards labour and labourers was positive. Nevertheless, in a situation where such an attitude is deeply entrenched in society, legal provisions will have little or no impact unless and until they are accompanied by cultural revolution. The latter was the missing item then.

The religious rules as well were unfavourable to industrial activity and industrial development. Although there have been many religions in Ethiopia, the Ethiopian Orthodox Church, which had been a state religion for many years was by far the most influential one in Ethiopian history. Accordingly, orthodox religious holidays which have been strictly observed by the population are non working days and there may be as many as fifteen or more per month.

Legally, though Ethiopia has been a member of the ILO since 1923, slavery had legal protection and was entrenched as a system for long time in Ethiopian history. It is well understood that for labour relations to exist and flourish, there should exist a free labour that is capable and ready to render service in return for wages on the basis of a contractual arrangement. However, in a system where slavery as mode of production is legally recognized, there is no such a free labour that is capable of freely contracting.

It was in 1931 that an attempt to abolish Slavery, through law, was undertaken in Ethiopian history. During this period, emperor Haileselassie issued a proclamation with this purpose in view. The relevant part of the proclamation contained the following: “All slaves who wished to be free could become free by asserting their freedom before a judge”.

It seems fairly obvious that the above cited stipulation cannot claim to have abolished slavery because it did not officially do away with the system. For one thing, it addressed itself only to slaves ‘who wished to be free’ and not to all slaves. Secondly, even for those who wished to be free, the freedom was not automatic and as of right; it rather required appearance before judge to assert freedom. Accessibility of the judges to slaves may also be an issue at the time.

It was only in 1942 that clear governmental commitment to abolish slavery was manifested. At this period, a proclamation which stipulated the abolishment of the status of slavery and which criminalizes possession, sale and transfer of slaves was issued. It is therefore with the doing away with the legal status of slavery that one can speak of labour development in Ethiopia as a freeperson capable of freely contracting has been an essential precondition.

Within the introductory section, it may be appropriate to discuss the sources of employment law. The phrase “sources of law” may mean different under different contexts. Material and formal sources of laws are the most usual ones. Be that as it may, sources of law in this context should be understood to mean “legal instruments which will have impact in regulating employment relations or in resolving employment disputes if and when they arise.” (i.e. formal sources of law). These sources could be categorized into national and international or into public and private instruments. The international ones are mainly Conventions and Recommendations.

International Labour Conventions and Recommendations differ from the point view of their legal character: Conventions are instruments designed to create international obligation for the states which ratify them, while Recommendations are not designed to create obligations but provide guidelines for government action.  At this juncture, mention should be made as to “any international agreement ratified by Ethiopia in an integral part of the law of the land”. (Art.9 (4) FDRE Constitution). As of 2006, Ethiopia ratified 21 ILO Conventions.

The sources of employment law of national origin may be classified into public and private ones.

The public acts include; the FDRE Constitution, the Labour Proclamation together with its amendments, the Federal Civil Service Proclamation and the Regional Civil Service Proclamations of the respective Regions; Pensions’ Proclamation etc. Furthermore, subsidiary instruments such as Regulations of Council of Ministers and Directives of the Ministry of Labour and Social Affairs; Directives of Civil Service Agency and the Regional actors need to be consulted. Due emphasis should be given to the constitutional principles such as the right to association; the right to freedom of movement; the rights of labour; equality and non discrimination and other relevant items of the same document.

Last but by no means least, decisions of the Federal Supreme Court Cassation Bench should be noted as sources of employment as these decisions are binding by virtue of Proclamation No.454/2005.

In this connection, it would be important to note that Labour law is within federal jurisdiction while Civil Service law is within the concurrent jurisdiction in the sense that the federal civil service is within the federal competence while the regional civil service is left to the respective Regions.

The private acts are instruments of private nature but binding as though they are law (Art.1731 (1) Civil Code). Thus, strictly speaking they are not law; all the same they are assimilated to law. These are: Contracts of employment, Collective agreements and Work rules. The first two instruments are bilateral ones while the third one is a unilateral instrument.

Private act as a source of law for the Civil Service does not seem to be applicable. For one thing, the contract of employment between the Civil Servant and his/her employer (i.e. the government office) will be an administrative in nature and public law in branch. Letter of appointment accompanied by job description, rather than a contract of employment, is to be issued to the civil servant by the head or any other authorized official of the government institution. Secondly, as the law now stands, unionization is not yet allowed for employees of the civil service, collective agreement will be an unthinkable instrument as a source of law in this area.

Finally, under this part, the scope of application of employment law will be considered. Within this context, how and why an employee is different from an agent or an independent contractor has to be analyzed. Arts.2512, 2179, 2199 & 2610 of the Civil Code may be of some help towards such comparison. We all may agree that all these three are commitments to render service. It must be admitted, however, that they have significant differences and employment law applies only on employee-employer relationship. Client- Contractor and Principal-Agent relationships are outside of the ambit of employment law. Issues of exclusions should also be considered under this topic.

NOTES(Extracted from “ Simplified Guide to the Ethiopian labour law”, By Mehari Redae)

Determining the scope of application of a legal instrument would enable us to apply it in its appropriate context. It will also help us identify the addressees of the instrument together with their rights and corresponding duties. Therefore, in any analysis of a legal instrument, it is appropriate to determine its scope from the outset. With this purpose in view, the analysis proceeds.