Employment & Labour Law

Lecture Note

by Admasu A.

2021/22 A.Y
 Chapter One:- General Introductory
Remarks
1.1. Def’n & Nature of EL/LL
Challenges of defining EL- b/c of its broader scope
covering diverging r/ps & legisl’ns.
But EL- is usually described as branch of
general/positive law- governing the various aspects of
the emplr-emplee r/ps(special r/p).
It regulates a series of complex E.R/ps based on EK:
formation, the rights&oblig’ns of the parties, the effects of
such r/p(performance, suspension, termination &its
conseqs), basic cond’ns of work(MWCs), collective r/ns &
dispute settlement mechanisms.
 Introd’n…
 The r/p may exist both in public or private domain-
established w/r for economic/non-economic reasons.
 It may manifest itself individually or collectively
aspect.
 Imp’t regimes of EL:- labour law, civil service law,
many other regimes governing E.R/ps in…..
 Labour law & Civil service law regimes constitute
major EL in Eth.
 Labour Law- is one major category/sub-set of EL-
mainly governing E.R/ps in the private sector & NG-
entities(NGOs, assoc’ns, unions, Pb enterprises, etc.
 Introd’n…
 Lab-law:- that part of law w/c regulates the industrial
& collective lab.r/ps in the private sector.
 It is the body of rules…w/c regulates the rights &
duties of persons performing or accepting the work…
 It also govern E.R/ps in Pb entities engaged in
eco./bus. activities- Ex. Public enterprises…
 Lab-law: is a unified/single system in Eth…
 An E.r/n under lab law is a tri-partite/triangular
dimension- involving emplr, emplee & gov’t (even at
ILO level). Why gov’t presence needed? Vs. freedom
of K pp.
 Introd’n…

 Civil Service Law:- is another regime of EL governing

the varios aspects of E.r/ns:
-in the state adm’n/pb adm’n/
-admve agencies/gov’t inst’ns-
-at federal or regional level-
-a dual system reg’n.
 It has predominantly individual E.r/n….. CER missing
why so?
 Introd’n…

The need for EL/LL: Purpose/objective/ function

E.r/n is fundamentally a k’al r/n & subject to pps &
rules of K in general.
Thus, it needs legal f/work for its formation, proper
operation & termination.
Labour is often sold under special disadvantage.
(Marshall).
Law is used as a force counteracting the inequality of
bargaining power inherent in the emplr-emplee r/p.
It has broader political, eco., developmental & social
dimension
 Introd’n…
 E.r/n has antagonistic interests:- Emplr-behind
maximization of profits & Emplee behind improving
their material & physical cond’ns.
 So EL/LL plays the role of preservation & promotion
of industrial peace- by balancing competing interests
of capital & labour.
 It has also strong implication for pps of
transparency, accountability of gov’t & the prov’n of
quality & effve public services.
 Introd’n…
1.2. Development/History of EL/LL
Develop’t of EL/LL has its own perspective esp in the
area of labour law.
Pre-industrial period: Lack of free labor & capital
negotiation / bargaining- system of slavery & land-
based feudal system.
Also dependent on family labour for its operation.
EL/esp LL dev’t had close r/n with industrial period-
increase for demand of labour for large scale
industrial establishments.
 Introd’n…
 Traditional view of lab-r/n: Considered as eco-r/n &
left to the agreement of the parties- under freedom
of K (justified under doc. of laissez faire).
 Lab-r/n to be regulated by market forces & free
bargaining… treated as contract to sell or lease
services in return for remuneration(conception of
labor as a commodity).
 But this app was ultimately challenged by ILO
Philadelphia Declar’n of 1944.
 Introd’n…

 Role of gov’t:- Enforcement of the promises of the

parties(re-affirmed in the decision of US Sup-court-
where -In Lochner vs. New York (1905), the Court
struck down a New York law limiting hours of work
in bakeries to ten hrs a day on the ground that it [the
law] interfered with the freedom of contract
between employers and employees. Read!
• However freedom of contract b/n economic
unequals would not bring about mutually acceptable
outcomes..…
 Introd’n…
 Such often result in subjecting labour to E/instability,
excessively low wages and long working hours
coupled with unsafe and unhealthy working
conditions/environment.
 B/c of such an inequitable outcomes & labour
discontent(indv or collective)- demanded for state
intervention in the labour-capital r/n.
 State/gov’t began to intervene in private E.r/ns- by
determining minimum w/cond’ns/guarantees at
workplace- the shift to doc of welfare state.
 Introd’n…
 The dev’t of socialist ideology vs capitalist system in
Europe & others…had also some role in….EL/LL…
social rights movement!
 Hence, among labour standards dev’ped at national
levels:- Limit’n of w/hrs, E/security, E/safety & health,
Benefits of E/injury, Sickness & other Paid leave
benefits, etc.
 Later on int’nally coordinated efforts were needed:-
lead to the establishment of ILO under the T.V.(1919).
 This provided with permanent int’nal & institutional
mode of dealing with labour protection….at the global
level
 Introd’n…
 Unique to ILO:- Though set up as IGO, it has
included private actors (representatives of trade
unions and employers’ associations) within its
core membership (Art. 3 of ILO Const’n). Read!
 According to the preamble of the ILO
Constitution, the need for int’nal cooperation &
establ’t of ILO was desired to address the three
social and economic concerns of the time:-
‘social injustice’; ‘social revolution(social unrest)’
and ‘social dumping’. What are they? Describe!
 Introd’n…
 The above 3 pillars of ILO addressed the tripartite
interests & concerns of the 3 imp’t actors in labor
r/ns- i.e. employees, employers & the government.
 So how can you evaluate the impact of ILO in the
protection & promotion of labour rights?
 Ethiopia became the member of ILO since 1923….
Incorporated into its laws some major instruments/
standrds emanating from ILO……see the ILO index on
status of ratification…..
 Introd’n…
At National Level:- The Case of Eth.
Dev’p of EL/LL had more or less similar pattern in Eth
even if came late due to……
It was an outcome of a slow and prolonged economic
and social transformation.
Ethiopian labour development was very much
associated with the emergence of industries and
industrial production systems.
Social, cultural & legal cond’ns were not also conducive
for LL dev’p.…despise/outcast both trade and manual
work in Eth.
 Introd’n…
 A case in point:- Minilek’s adoption of law on such negative
social attitude(1908).
 Victory of Adwa(1896) & emergence of capital mode of
production then after……
 In Ethiopia, railway, telecommunication and banking
services were the earliest economic establishments- w/c
attracted appreciable numbers of labourers from the
countryside.
 The emergence and subsequent development
of urban centers- including AA & DD.

.
 Introd’n…

 The unfavorable legal environment at the time that

was responsible for hindering the
development of labour relations in Ethiopia.
 Slavery was an entrenched and legally recognized social
relation in the country until it was abolished by law in
1942 & was incompatible with the emergence of labour
relations.

.
 Introd’n…

 Due to long absence of statutory f/work,

‘contractual freedom’ became the legal basis
for the parties’ relationship- problematic!!
Among legislative measures:-
 The 1931 first Const’n of Eth and a Proc’n to
abolish slavery (1931)-
 Slavery abolition proclamation of 1942
(no.22/42).
 Introd’n…

 The Factories’ proclamation of 1944 (no.58/44)- limited

intervention on safety & health issues in factories…
 The 1955 Rev. Const’n- recognized freedom of
occupation & assoc’n;
 The 1950s-1960s- the period of codif’n & introd’n of
modern codes:
The 1960 Civ. Code was imp’t legal instrument providing
rules on:
 General K(arts.1675ff);
 Introd’n…

 ‘Contracts for the Performance of Services’ (Title

XVI arts.2509ff)- provided for minimum labour
conditions, no term’n of EK w/o good cause, social
entitlements in the form of paid leaves, prevention
EI rules, etc.
 Missing in the Civil Code:- the issue of unionization,
collective bargaining & dispute settlement
mechanism;
 ‘Contract of work & labour (arts. 2610ff);
 Introd’n…
 The 1st specialized labour legisl’n in Eth: was adopted
in the form of Decree in 1962 & latter became Lab-
R/n-Proc. No.210/1963.
 Proc-no.210/63- provided for collective labour
aspect, LDR system(LRB) & other MLCs…..
Military Rule: The Derg Regime(1974ff)
 Abrogation of LRP 210/63 & replace by the famous
LP-no.64/1975;
 It brought a shift in ideology- socialist oriented;
 More focus on E/security….
 Abolished LRB & created labor specialized court;
 Introd’n…
During TGE:
 A new LP-no.42/1993 was adopted;
 More of market-oriented law & attempted to
balance capital-labour interest protection;
 Later replaced by another famous LP-no.377/2003 &
its 2 amending proc’ns- some changes introduced;
Current lab-law:
 The adoption of Proc. No. 1156/2019- unified all
amend’ts & filled some ongoing gaps in…..
 Also introduced some new rules on……
 Introd’n…
In the area of Civil Service Law
 Unlike Lab-law, no much ups downs…..
 Primarily based on gov’tal decrees, orders, reg’ns,
legal notices & circulars (mostly subordinate
legisl’ns).
 The 1st Public servants law was issued in 1961(Order
No. 23/1961).
 A Reg’n was issued to implement the Order
Reg.no.1/1961).
 Followed by a series of latter additions in law…
like 262/2002, 515/2007, 1064/2017….
 Introd’n…

1.3. Sources of EL/LL

 Sources: any legal instruments/documents regulating
E.r/ns;
 It could be National or international sources.
 Intern’al sources: Conv’ns/treaties, recommend’ns,
other declaratory insts;
 National sources: could be either public or private in
nature & origin;
 Public sources:- const’n, proc’ns, reg’n, directives,
decisions of FSC(by 454/2005),
 Introd’n…
 Private sources: Insts of private origin w/r bilateral or
unilateral but binding the parties such as KE, CA, WRs,
etc
 Private sources are more imp’t under lab.law than
CSL…..
Hierarchy of applc’n of multiple sources
 The rule of general hierarchy of law not applicable
here.
 Rather guided by the pp of the more
favorable/benefit to the disadv party in the r/n….
 Introd’n…
1.4. Scope of Application of EL/LL
 Essence of determining scope of appl’n of EL/LL;
Key terms/concepts:
– worker/employee (Art.2(3)LP- always physical person..
– employer/undertaking (art.2(1&2)LP… type of undertak.
– public/civil servant (art.2(1)CSP),
– gov’t inst’n (art.2(3) CSP) Vs. Pb enterprise
– KE (art.4LP) Vs. letter of appointment(art.21CSP).
 EL basically applies to E.r/ns- based on EK- but not to all
types of E.r/ns…..some excluded!
 All E.r/ps originate from EK- basic tool for E.r/ns-
special K(See art.4(1)LP).
 Introd’n…
 As type of K, EK need to fulfill all validity requ’ts for
the making of K in general.
But EK has still basic defining elements: Art. 4LP
i. The necessity of agreement of the parties (voly
engag’t).
ii. Performance of work- rendering personal service
iii.Under the authority/direction/control...etc. of the
emplr- both process & result-oriented.
iv.Duration of engag’t(EK)- indefinite or definite period
or for piece work (arts.9 & 10 LP).
v. Wage/remuneration (in cash or in kind)- onerous
transaction(arts. 55ffLP).
 Introd’n…

 If the above requ’ts are fulfilled together, there will

exist E.R/n(Emplr-Emplee r/ns)… a special type of
relation.
 But EL/LL have their own scope of appl’ns, that is,
some E.R/ns may be excluded from the ambit of
labor law or civil service law- called the concept of
exclusions(See arts. 3LP & 2(1&2) CSP).
 In EL/LL, inclusion is the rule & exclusion is an
exception (See Art. 3LP & 2CSP).
 Introd’n…

The Concept of Exclusion:

 Steps in the determination of scope of appl’n of
lab.law/CS-law:-
1st stage:- W/r there exist emplr-emplee r/n(KE-E.R/n)
or not……..based on the previous elements.
2nd stage:- If yes to the 1st stage, then w/r such r/p falls
under the ambit of or excluded from certain EL/LL
regime.
 Introd’n…

Exclusions under Ethiopian laws

 Civil Code(art.2513)- excluded pb servants& state
employees.
 Public servants order of 1961- excluded some state
emplees, police & armed forces, judges, ministers,
parliamentarians,….
 Labor R/n Proc. of 1963- excluded M/staff,
D/servants, agr.emplees, pb servants,…
 Labor Proc. of 1975- police & armed forces, judges,
prosecutors & registrars, state emplees, D/servants,
M/staff,…
 Introd’n…
 Labor Proc. No. 42 of 1993- has more or less similar
list of exclusions to that of Lab.Proc. 377/2003 &
1156/2019.
Exclusions may be of 2 types:
1. automatic/outright/unconditional(art.3(2)LP); &
2. conditional/potential(art.3(3)LP) exclusions.
A. Common types/lists of unconditional exclusions
under current labour law include:
i. Ks for the purpose of upbringing, treatment, care or
rehabilitation- 3(2/a); E.g. tutor-minor r/p, doctor-
patient r/p, prisoner-prison adm’n r/n, etc
 Introd’n…
ii. Ks for the purpose of educating or training other
than apprentices- 3(2/b)&48ff LP; E.g. R/ns b/n
academic/training inst’ns & their students/trainees,
iii. Managerial employees(MEs)- 3(2/c)- is one of the
famous labor law exclusions- but we have some
interesting issues in r/n to exclusion of MEs….
 What is the purpose for ME exclusion?
 Who are MEs & how determined? Source of
managerial power(by law or delegation) & the
actual/real power/function exercised!
 What if there is doubt on ME status? Doubtful status
 Introd’n…
 What will be the fate of MEs? How their rights &
interests are protected?
See some decisions of the FSC on MEs status
determination, protection of their rights & rules
governing MEs in Eth.!!!
iv. Ks relating to independent constractors-3(2/f) LP &
2610ff Civ.C.
 Who are Indep’t Krs & how they are similar to & differ
from emplees in E.R/n? See Arts. 2610 Vs. 4LP!
 Indep’t Kr: a person who, under a contract of service,
performs a work in consideration of pay’t at his own
business risk or professional responsibility.
 Introd’n…
 Similarity: the prov’n of services(work) & pay’t of
remuneration…
 Major differences b/n K.E(4LP) & that of K of work &
labour(2610)- or Emplr-Emlpe r/n Vs. Client-
Contractor r/n such as: multiple test criteria used by…
 Working at his own responsibility/risk- direction/
supervision/control test.
 Provision of means & tools of production….
 Nature of service given- personal vs. delegated!
 Duration of service/engag’t- longer vs. shorter!
 Organizational/integrity test-
 Intention of the parties
 Introd’n…
v. Ks for personal service-D/servants:- 3(2/d)
 What do you think would be the rational for such
exclusion & will that be a good legis’ve app.?
 What are the legal means of protection for such
groups in the country? K, 2601ff,
vi. Other exclusions- 3(2/e)….Read why so??
B. Conditional exclusions under LP: 3(3)
 A category of promised exclusion upon fulfillment of
some cond’ns: making of separate domestic laws or
conclusion of int’nal treaties.
 So determine appl’n of LP to Eth employees working in
embassies, consular offices & int’nal organz’ns!
 Introd’n…

 Also the status of employees in religious or

charitable organz’ns: 3(3/b)- how LP apply to them?

Exclusions under CSP:- See arts. 2(1&3) CSP

 What are the major exclusions under CSP?
 How it differs from the list of exclusions under the LP?