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 19th 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 20th 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.