employment law Resources

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Relationship Between Employee and Employer

Introduction

Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as: "A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed." Black's Law Dictionary page 471 (5th ed. 1979).

Contract

A contract is of a very big importance for employee/employer relationship. A contract is a promise or a set of promises for the breach of the which the law gives a remedy, or the performance of which the law in some ways recognize a duty. That is an a agreement which creates legally enforceable obligations between two or more parties. There must be an offer, an acceptance, and consideration to support the formation of a legally enforceable agreement.

The Fair Labor Standards Act (FLSA)

This act provides that, as of March 2001, a federal minimum wage rate covering most hotel and motel employees us $5.15 per hour. That rate changes whenever the U.S. Congress enacts a new federal minimum wage. Hotels or motels not covered by the federal laws may however be a subject to state minimum wage rates. Federal law requires that all hotel and motel employees of covered enterprises be paid at the rate of one and one-half times their regular hourly rate for all hours worked in excess of 40 hours per week.

The Family And Medical Leave Act 1993 (FMLA)

This Act became effective on August 5th 1993, and provides for a period of mandated unpaid employee leave up to 12 weeks per year for the birth, adoption, or serious illness of a child, or a serious illness of a parent or a spouse, with a return to the same or equivalent job.

Under FMLA, employers with 50 or more employees are required to allow suitable employees to take unpaid leaves or absence of up to 12 weeks every months in order to care for a newborn or newly placed adopted or foster child or because of a serious illness of the employee or an immediate family member.

Title VII Of The 1964 Civil Rights Act - Discrimination

This Act says about the respect of the employees. They should be respected no matter what is the color of their skin, their sex, nationality, religion, etc. This act for the first time gave women significant legal tools with which to oppose sex discrimination in employment. Many hotels now follow strict lines regarding what work is done by room attendants (“maids”) as distinguished from housepersons (“housemen”).

This Act makes it unlawful for an employer to discharge, to refuse to hire, or to otherwise discriminate against any person with respect to the terms of his/her employment because of his/her age, if the person is 40 years old or older.

Also, most hotel and motel owners are well aware that they cannot discriminate by hiring qualified applicants from one race in preference to another race. The same thing is for religious and national origin discrimination.

The Occupational Safety And Health Act Of 1970

This Act makes sure that every employee is working under safe and healthful working conditions. To complete this purpose, OSHA establishes standards to protect employees from safety and health hazards, conducts inspections of workplaces to check fulfillment of safety standards, requires that certain records of work-related injuries be kept, and enforces its regulations by citations and fines for violations.

The hotel management must become familiar with and comply with all occupational safety and health standards publicized by OSHA. This Act includes such subjects as safeguard for walking and working surfaces, stairs, doors, and exits, personal protective equipment, machine and fan guards, the use of appliances and electrical equipment, drinking water safety, restrooms, bloodborne pathogens, etc. Management must inspect the hotel premises to insure compliance with OSHA regulations and to improve any hazardous conditions that may develop.

The Code Of Practice

The relationship between an employer and the employee within the hospitality industry should be very professional. The most important is fair treatment of the employee. It can be done by Code of practice.

The Code of Practice contains suggested general workplace practices which employers and businesses are encouraged to adopt to facilitate the fair treatment of employees employed in the Hospitality industry. This Code of Practice is not intended to be used in replacement of any industrial instrument (such as an Award or Workplace Agreement) or legislative requirements that may apply to a particular employment relationship. It is in

no way a statement of the legal rights and obligations concerning an employment relationship.

Also, the Code of Practice is not intended to be, nor can it be, relied on as a defence to an action for a breach of an industrial instrument or legislative obligation relating to an employment relationship existing in any jurisdiction.

In addition, the Code of Practice is not intended to be relied on as legal advice. It does not contain specific information about what rights and obligations apply to a specific employment relationship.

Motivation

Wood et al (2004, p 355) describe control as being either output focused, focusing on desired targets with managers defining, and using, their own methods for reaching targets, or process controls, which specify the manner in which tasks will be achieved (Ibid, p. 357). Employer and managerial control within an organization rests at many levels and has important implications for staff and productivity alike, with control forming the fundamental link between desired outcomes and actual processes. Employers must balance interests such as decreasing wage constraints with a maximization of labour productivity in order to achieve a profitable and productive employment relationship.

Motivation is the most difficult factor for employers to effectively manage in the employment relationship . Employee motivation can often be in direct conflict with control mechanisms of employers, and can be broadly defined as that which energizes, directs and sustains human behaviour ( Stone, 2005, p 412). Dubin (1958, p 213) further elaborates on this, noting motivation as “something that moves a person to action, and continues him in the course of action already initiated.”

A fair employer will clearly establish with the employee what their job classification and level is under the relevant Award or (registered) Agreement at the commencement of their employment, and again if their classification changes during the course of their employment. He/she will also outline the duties expected within the job classification.

The Break

The break is also of a very big value in the workplace, either within the hospitality industry, or within the other industries. A fair employer will observe meal break requirements and ensure employees take their meal break (usually minimum 30 minutes and up to 1 hour) and rest pauses (usually 2 x 10 minute breaks or 1 x 20 minute break).

Where a meal break is unpaid, a fair employer will allow the employee to be absent from the premises for the duration of the break. During paid rest pauses and crib breaks, an employee can reasonably be required to remain on the premises, with provision made for employees to take a break from work. He/she should also make (business) allowances for employees to take breaks from their work during the course of the day's work.

It would be unfair (and potentially unlawful) for an employer to fail to grant work breaks to employees working in the hospitality industry, particularly where employees work on their feet for long periods at a time.

The employees should be paid for all time worked at the appropriate rate. A fair employer will not have an express or implied expectation of employees to work unpaid overtime.

He/she will have an overtime process in place in the workplace where overtime is approved, recorded and paid. Furthermore, a fair employer will pay an employee overtime rates for any overtime worked:

a) A fair employer will not require an employee, without choice and genuine agreement, to take time off in lieu of paid overtime.

b) Time off in lieu is not always provided for (or permitted) in an Award or (registered) Agreement. Check the relevant Award or (registered) Agreement to see if it is lawful in your workplace to take paid time off in lieu of overtime.

In addition, a fair employer will pay their employees who work on a public holiday the relevant public holiday rate of pay prescribed by their Award, (registered) Agreement or Act. They will pay their employees any applicable penalty rate, allowance, or loading when their employees work weekends, late work, or shift work.

Where employees are required to attend staff meetings, a fair employer will pay their employees at the appropriate rate of pay, including: any overtime rates that have become payable if an employee has already worked on that day; and payment for the minimum number of hours as required under any relevant industrial instrument for employees who have not otherwise attended work that day.

He/she will pay their "salaried" employees overtime, penalty rates and public holiday rates etc if their employment is regulated by an Award or (registered) Agreement or the Act which provides for such payments for those employees

The Law Of Their Relationship

The courts have established a number of tests that can assist in determining whether an employer/employee relationship exists. However, in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR16, the High Court made it clear that there is no single test that can be relied on and it is the totality of the relationship between the parties which must be considered in reaching a determination.

The employees cleaning accommodation facilities are also of a very big value for the employee's treatment. A fair employer will pay an employee in accordance with the length of time the employee spent performing work for the employer.

For example, he/she employer will not pay an employee, who is employed to clean rooms in an accommodation facility, on the basis of a fixed rate per room ('room rate') rather than on the basis of the length of time the employee reasonably spent cleaning the area.

A fair employer will ensure that employees are paid at least the minimum prescribed amount under the relevant Award or (registered) Agreement for all time worked, including any applicable penalty rates.

He/she also will not require an employee to clean a room in an unreasonably short allocated time frame where in fact the length of time it would reasonably take a competent employee to clean the room is longer than the time allocated.

He/she will not require any employee to complete any cleaning job in their own time.

Where an employer considers the length of time taken by an employee to clean a room is excessive and/or the clean is inadequate, a fair employer would manage those issues by, for example:

i) evaluating the adequacy of the time allocated to clean the rooms and involve the relevant employee/s in that evaluation;

ii) negotiating with employee/s any adjustments to the allocated time identified as necessary;

iii) providing equipment, training or counselling for the employee to enable him or her to perform better their duties.

Awards

Also, a fair employer meets the requirements for rostering provided for in Awards and (registered) Agreements, which may include minimum and maximum daily hours for all classes of employees and a spread of ordinary hours, outside of which penalty or overtime rates apply.

Casual employees generally have a minimum number of paid hours for any engagement provided in awards or agreements in recognition of, and to ensure compensation for, the cost of attending work (such as transportation, child care etc).

Part-time employees generally have minimum daily and weekly hours and maximum daily and weekly hours. These are in part to differentiate them from casuals and full-time employees, but also to ensure part-time employees receive a reasonable regular weekly income.

Full-time employees do have flexibilities in rostering provided for by many awards and industrial instruments, but generally have minimum daily hours and maximum daily and weekly hours.

A fair employer would provide reasonable notice to employees about changes to rosters. Most awards and industrial instruments provide for minimum periods of notice to be given to full-time and part-time employees about roster changes and some for casuals. A fair employer would not expect an employee to accept a roster change without reasonable notice. He/she would also accept an employee's inability to meet a request to cover a roster change and this would have no impact on future rostering of the employee.

For casual employees, every shift is a separate contract of employment, in that there is an 'offer and acceptance' to work. Accordingly, a fair employer would not disadvantage a casual employee who may exercise his/her right to decline the offer to work on occasion.

A fair employer will ensure working hours for their employees are fairly distributed in accordance with the contracts of employment of each of their employees and without discrimination on any grounds.He/she will ensure rostering takes account of their

employees' family responsibilities for part-time and full-time employees and does not discriminate against casual employees with family and caring responsibilities.

He/she will facilitate communication with their employees about days and times when they may be unavailable and respect the unavailability of individuals and, having regard to the genuine operational requirements of the business, not include them on rosters or call them for work at times they have said they can't work.He/she will ensure rostering

takes account of employees receiving an adequate break between shifts. Some Awards and (registered) Agreements provide for minimum time between shifts, with overtime payable where this minimum break is not observed.

Also, A fair employer will ensure rosters are not changed with the intent of avoiding payment of penalties, loadings or overtime.

Uniforms

Regarding to uniforms, a fair employer who requires an employee to wear it, will supply, maintain and launder the uniform at the employer's expense; or in case the employer requires that the employee maintains and launders their own uniform, a fair employer will pay the employee an adequate allowance for doing so, at least consistent with the provisions of any relevant Award or (registered) Agreement. A uniform supplied by an employer remains the property of the employer. Also, any uniform supplied by an employer will account for individual size and body shape so as not to be demeaning or revealing.

In addition, there is also a question: What money can be deducted from wages? The answer is following:

Only deductions authorised by law (such as taxation) or by the written consent of the employee can be deducted from an employee's wages. He/she will not require an employee to sign blanket authorities to deduct money from their wages for anticipated future events. He/she also will not require an employee to pay from their wages any shortfalls in the cash register, or for reimbursement of customer theft, or for damage or breakages to stock or equipment occurring during the course of employment.

Furthermore, if an employee is required by the employer to authorize such a deduction, that authority may be considered by the court not to be a bona fide authority from the employee and the employer could be ordered to repay the money and may also be ordered to pay a fine.

A typical example of an unauthorised deduction is when an employer takes money from an employee's pay for 'social club' contributions, without the employee's express written consent.

From the other side, employers are expecting from their employees to do their job well. That includes following:

  • Initiative: Employers will expect you to complete your own job and if you haven't been told what to do, look around to see what needs to be done and do it.

  • Willingness to Learn: Your employer will expect you to learn the way things are done in the company.

  • Willingness to Follow Directions: Always follow directions exactly as you are told.

  • Honesty: Employers will expect you to be honest and to tell the truth. Other forms of dishonesty on the job are: starting work late, leaving work early and stealing company property. Stealing time is the most costly form of dishonesty on the job. You &quotsteal" time when you come in late or leave early.

  • Dependability: Your employer will expect you to be on the job every day and on time. If you will be absent or late, you must call your supervisor. If you have an

  • appointment with your doctor, dentist, etc. let your supervisor know in advance. Try to make appointments before or after work so you won't loose time from your job.

  • Enthusiasm: The most successful employees are those who are enthusiastic about their work.

  • Acceptance of Criticism: Criticism is the way a supervisor tells you how they want a job done. You are expected to improve because of it. Listen and learn from the constructive criticisms your supervisor will share with you. Try to see how it can help you become a better worker. Even if you feel the criticism is unfair, try not to lose your temper.

  • Loyalty: Show loyalty to your company.

  • Punctuality: Arrive at work on time and don't leave early.

  • Dress Appropriately: Dress the way your co-workers do.

  • Ask for further instructions if the task is unclear: Request clarification if you are unsure how to complete an assignment.

  • Be flexible and accept assignments that may not fall under your specified job duties, because of time and/or staff constraints.

  • Observe and respect chain of command. Learn what position each of your co-workers hold in the office and how their position relates to yours.

Conclusion

Taking all the things mentioned above into the account, we could see that the relationship between the employer and the employee is of a very big importance. If everything is done as it is written above, the relationship between the employee and the employer will be perfect. Unfortunately, there are few or no places where it is possible.

References:

Lee, E. (1996), "Globalization and employment", International Labour Review, Vol. 135 No.5, pp.485-98.

Raymond Markey, Ann Hodgkinson, Jo Kowalczyk (2002), “Gender, part-time employment and employee participation in Australian workplaces” Employee Relations, Vol. 24 Iss. 2 Pp. 129 - 150

Wood , J, Wallace, J, Zeffane, R, CHampan, J, Fromholtz, M, Morrison V( 2004), Organisational Behaviour:A global perspective, 3rd edition, John Wiley and Sons, QLD, Australia.p 355-357.

Stone, R, (2005), Human Resource Management, 5th edition, John Wiley and Sons, QLD Australia.p 412-414

Dubin, R, ( 1958) The World Of Work: Industrial Society and Human Relations, Prentice - Hall, Englewood Cliff, NJ, p 213