Contracts of Employment

see also...

The protection afforded by most national labour laws and ILO instruments is applicable only to workers who are employees and have an identifiable employer with whom they have an employment relationship, the corresponding legal instrument being generally referred to as a contract of employment. Contracts of employment may be expressed or implied, in writing or verbal. Where an employment relationship exists, the following features ought to be present:

The traditional pattern of the employment relationship, or standard employment relationship, has for many years been that of full time work, under a contract of employment for unlimited duration, with a single employer, and protected against unjustified dismissal. Almost everywhere this is still the prevailing pattern of employment. However, since the early eighties new patterns of employment have emerged, perhaps improperly known as atypical employment. They include, but are not limited to, part-time work, fixed-term contracts of employment and the so-called triangular employment relationships, i.e. arrangements whereby workers are taken on by an employer with the purpose of being posted with a third party known as a user enterprise. Moreover, a growing number of arrangements for work or services that traditionally were concluded within the scope of a contract of employment are now concluded beyond that scope; they belong to a category of so-called contractual arrangements though such a terminology may be somewhat misleading. Legally speaking, workers within these arrangements are not employees.

The reasons that lay behind the growing use of so-called atypical forms of employment and arrangements for performance of dependent work beyond the scope of an employment relationship are varied. Emerging economic, technological and organizational challenges as well as political and legal changes have made these arrangements easier. Evolving attitudes towards work have also contributed to this trend. Whatever the reason, the fact remains that many workers in so-called atypical employment or without employee status either have weak social protection or are simply denied protection under labour or social security law.

The overall issue is highly controversial, with widely diverging views and positions being supported by business and labour circles respectively. The question is, however, how to prevent misuse and to protect the workers concerned rather than to challenge the right to have recourse to such arrangements when the circumstances justify it. It is against this background that the International Labour Office undertakes research, publishes information and provides labour law policy advice to assist member States in addressing these issues. It is essential that workers not be discriminated against solely on the basis of their legal position vis-à-vis the natural or legal person for whom they perform work or provide services. A workable definition for what is meant by an employment relationship, and good policy guidance on when and how to address so-called atypical employment are essential for good and fair governance of the labour market.