2.23 Agreement of Employment (5 pages)

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With the development of socially responsible legislation and collective agreements negotiated between management and trade unions on behalf of the workforce, the content of the individual contract of employment is becoming less important, save in the case of more senior managerial and other professional employees.
It is illegal to contract for less than the minimum terms and conditions provided for in statutory instruments such as the BCEA, or a binding bargaining council agreement or wage determinations, or (usually) private collective agreements entered into between employer and trade union. The most important aspect of the employment contract is its existence, for this determines whether the worker concerned is indeed an ?employee? and hence covered by the aforesaid labour legislation, or merely an ?independent contractor? who is not so covered. The determining factor is the degree of control exercised by the employer over the manner in which the employee is required to perform his/her work.
The content of the contract becomes important where what is required to be regulated in the relationship concerns matters outside the concern of minimum condition legislation, such as restraint of trade, confidentiality and employee invention agreements, which are typically of application to the more senior type of employee. Suitable restraint of trade documents are Forms 2.27 or 2.28
described below and Forms 7.8 and 7.9 (see Section 7, Immaterial Property) for confidentiality and employee invention agreements respectively. Form 8.1 is a suitable document for E-mail and Internet Usage Policy for Employees.
It may be helpful to refer to the Agent?s Commission Agreement, Form 1.10 in the General Agreements Section, and the Commission Claim, Form 9.67 in My Business Section, when formulating terms for commission earners in clause 10 of this agreement. Whether the best tax advantage for the employee is to be gained through having a company car with all expenses paid, or through receiving a travelling allowance depends on a complicated calculation which deals with such matters as the income of the employee and distance travelled by him/her for business purposes. A chartered accountant should be consulted in this regard. It is suggested that a tax expert be consulted in order to derive the best tax advantage should the employer consider granting the employee further fringe benefits such as free accommodation, housing or education assistance. This is a comprehensive agreement and certain of the clauses may be inappropriate and accordingly they should be deleted where necessary and initialled by both parties.