For a century, the employment relationship was a creature of contract.4 Under this regime, the employee's labour was severed from his/her person, and. Employment contract creates employment relationship. An employment relationship is created when employer and employee agree on the work to be performed. Employment Contracts Act is the basic law regulating employment relationships. It is applied to work performed in employment relationships in both private and.
From this contract, the employee becomes the creditor of the job provision and of the work tasks corresponding to the accepted qualification. TCE focuses on obedience and acceptance, and other contract economic theories do not mention this fundamental aspect of the employment relationship, which suggests that the employer has an unlimited ability to fix the work conditions.
Employment contract and employment relationship - Ministry of Economic Affairs and Employment
According to TCE, this acceptance zone does not result strictly from positive law but instead results from private ordering. For Simonthe employment contract is strongly different from the ordinary marketing contract.
Hence, W accepts authority in a specific area of acceptance. Simon thus writes: We will say that B exercises authority over W if W permits B to select x [an element of the set of all possible behavior patterns]. This is the definition of authority that is most generally employed in modern administrative theory ibid. This is why an employer cannot demand employees to work and provide productive tasks beyond the initial employment contract notably because the criterion of employee qualifications and performances is central in French employment contract.
Because the area of the acceptance zone depends on this qualification, the employer cannot modify it without the consent of the employee. The employer has the ability to impose the rules on the employee, as he is the instigator. More specifically, we can observe three forms of power in employers, namely, the direction power, the normative power and the sanctioning power Jeammaud The direction power is also related to the power of directing individuals, which gives the employer the right to recruit an employee, to assign him to a precise task or work station, to fix his remuneration, to manage and control the execution of his work and to unseat the employee from the productive activity.
The French civil code affirms that ownership is the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations.
In this view, the treatment of ownership is not fundamentally different in the sense that ownership may also give de jure power in the French legal system.
The normative power refers to the rules implemented by the employer himself. Finally, the sanctioning power is linked to the right of the employer to take sanctions toward employees making professional faults. Among these sanctions are official warnings, punitive layoffs, and dismissals, among others.
However, if the legal order confers to the employer the power of making decisions aiming to or influencing the employee who must accept them, we note that the French labor code Code du Travail does not formally recognize this form of authority. The French notion of contrat de travail is directly related to the notion of subordination in which the duty of obedience is accepted in return for the absorption by the firm of a range of social risks.
Indeed, the employer is thus able to implement via contracts the incentive devices previously mentioned. The objectives of these contracts are to force the employee to achieve the highest level of effort see supra. Although the power of the employer is taken into account by contract economists, it appears that, according to these economic approaches, the protection of employees should not come from law but from market mechanisms.
Indeed, some market mechanisms are able to reduce the potential opportunistic behavior of the employer, who would be tempted to exploit the employees by not respecting his ex ante commitments. The reputation of a firm is derived from the way in which it pays employees and constitutes an incentive to behave honestly with the employees. A second important market mechanism underlined by Williamson is based on the potential actions used by the employees to thwart the opportunistic employer.
In fact, employees are not really without recourse and can act in a way that penalizes their employer by choosing perfunctory cooperation to the detriment of the consummate productive cooperation. Therefore, employees also have power within the organization. Collective negotiation and convention: This is a procedure likely to be used with agreements endowed with normative effects, called collective agreements or conventions.
The particularity of these agreements is that they apply in a systematic way to individual contracts and employment relationships and thus without mediation because the wills of the concerned parties do not matter. Therefore, we also observe the double nature of the employment contract as both an authentic contract and an institutional act un acte condition in both French and American labor law.
The latter refers to the non-contractual situation of the employee in the institutional context of work as in the Williamsonian analysiswhereas the former refers to the contractual dimension of the employment relationship between an employer and an employee. In these conditions, for the lawyer, the employee is both the co-contracting party of the employer and the member of the workforce.
This is the case for the institutional arrangements emanating from State regulations such as hygiene and safety and also for the arrangements resulting from collective conventions see Supiot These conventions state the minimum amount of remuneration, the classification grid and the work time. Furthermore, collective conventions are both an automatic effect and an imperative effect such that they are imposed on all individual employment contracts.
On different occasions, Williamson focused on the superiority of the legal model of industrial pluralism see Shulman ; Cox ; Summers — and notably the process of collective negotiation between employers and unions — compared with the model of legal centralism. This argument is complementary to those he uses to justify the efficiency of the process of arbitration in comparison with the legal procedure see infra the discussion on disputes.
In this view, Williamson quotes the work of the lawyer Coxfor whom allowing an individual to engage in the procedure of arbitration would discourage the on-going cooperation between the employer and the employee. On the other hand, unions have the objective of governance. That is, they must ensure the continuity of the relationship between the employer and his employees when specific human capital is engaged in the relationship.
Unions are also important in the moderation of increasing the wages of employees, which could penalize the economic durability of the firm.
Finally, by means of collective negotiation, the firm implements a real internal market of labor endowed with institutionalized and explicit rules, notably in terms of the wage grid 17 and with a promotion system that contributes to efficiency by encouraging cooperative behavior from both employees and employers, who have the common interest of continuing the relationship. Because the contract is the result of individual freedoms, legislators and judges do not interfere with its formation or its content.
However, not all the arrangements of the French labor law adhere to this model. On the contrary, it seems that contract economic theories are clearly incompatible with the positive labor law of the French legal system.
The importance of both the State and law courts judges in the French legal structure of labor relationships: In terms of employment protection law, this higher authority plays a central role in France. In this view, contract economic theories cannot be expressly applied to the French system of employment relationship regulation because of two major differences with the American labor law: We believe that two characteristics of the French model are incompatible with a strictly contractual analysis.
Although they are considered contractual relationships of private law, the employment relationships are submitted to rules emanating from the public order aiming to protect the weaker party of the contract.
The role of the State is also important in the settlement of disputes. More generally, the role of the judge is essential in the French labor law in contrast to the American labor law. French law is characterized by a high level of aggregate protection compared to the USA. The role of the judge is also imperative in terms of the control of the disciplinary, regulatory and management powers of the employer. Indeed, the judge must control social plans and avoid or limit dismissals.
Dismissal for economic reasons is thus under the judicial field and the control of the judge — notably the French Cassation Court. Furthermore, some clauses of the employment contract are subjects of particular attention for judges.
The failure of employees to achieve contractual objectives can be a cause of dismissal only if the two following conditions are met: French jurisprudence has been interested in the variation clauses that allow the employer to substantially and unilaterally modify some elements of the employment contract.
The main risk is thus that the employer obtains, due to the contract, the unilateral power to modify these fundamental elements. However, the Cassation Court has deemed some of the clauses of the employment contract to be void; an example of such a clause is one that allows the employer to modify the contractual remuneration of the employee.
Similarly, the procedure of wage individualization depends on justification requirements. Judges can even intervene to validate or not the lawful nature of the remuneration systems based on the classification of employees in terms of their relative performance. In other words, we observe a real and important gap between the French labor law and the contract theories of the firm. The same conclusion can be made regarding the regulation of disputes.
This legal procedure is explicitly opposed to the point of view of Williamsonwho justifies in different occasions the superiority of arbitration and grievance procedures over the legal system of judges and courts for settling disputes.
In other words, in the case of economic transactions based on a perfectly identified good — the pure exchange model — a court can be efficient for settling disputes and conflicts. For purposes of this Agreement, the Executive shall be considered to be in the employment of the Company and its Affiliates as long as the Executive has an employment relationship with the Company and its Affiliates.
The Committee shall determine any questions as to whether and when there has been a termination of such employment relationship, and the cause of such termination, under the Plan and the Committees determination shall be final and binding on all persons. Employment with the Company is for no specific period of time. Your employment with the Company will be at will, meaning that either you or the Company may terminate your employment at any time and for any reason, with or without cause.
Any contrary representations that may have been made to you are superseded by this letter agreement. This is the full and complete agreement between you and the Company on this term.
Although your job duties, title, compensation and benefits, as well as the Companys personnel policies and procedures, may change from time to time, the at will nature of your employment may only be changed in an express written agreement signed by you and a duly authorized officer of the Company other than you.
For purposes of this Agreement, Employee shall be considered to be in the employment of the Company as long as Employee remains an employee of a the Company, b an Affiliate as such term is defined in the Plan or c a corporation or a parent or subsidiary of such corporation assuming or substituting a new option for the Option. Any question as to whether and when there has been a termination of such employment, and the cause of such termination, shall be determined by the Committee in its sole discretion, and its determination shall be final and binding on all parties.
For purposes of this Agreement, the Employee shall be considered to be in the employment of the Company as long as the Employee remains an employee of either the Company or an Affiliate. Without limiting the scope of the preceding sentence, it is specifically provided that the Employee shall be considered to have terminated employment with the Company at the time of the termination of the Affiliate status of the entity or other organization that employs the Employee.