Employment Contract or Act: Which Holds More Weight?

Most of us signed an employment contract the day we commenced our employment.

An employment contract is a part of employment law and the basis of the employment relationship between an employer and an employee. It is a voluntary agreement between two parties in which the employee agrees to make certain specified and/or implied skills available to the employer for a fixed or indefinite term. The employer again agrees to remunerate the employee at an agreed rate. The employer thereby acquires the right to exercise control over the way in which the employee’s abilities are used.

It sometimes happens that disputes arise about the legality of certain requirements stipulated in the employment contract.

So, which carries more weight: your employment contract or the Act?

The answer is largely locked up in sections 4 and 5 of the Basic Conditions of Employment Act named the “Act” in this article.

Inclusion of provisions in employment contracts:

A basic condition of employment constitutes a term of any contract of employment, except in so far as—

  • (a) another law determines a term that is more favourable to the employee;
  • (b) the basic condition of employment has been replaced, changed, or excluded in accordance with the provisions of this Act; or
  • (c) a term of the employment contract is more favourable to the employee than the basic condition of employment.

This Act is not affected by agreements

This Act or anything done under it takes precedence over any agreement whether entered into before or after the commencement of this Act.

In short, it states that the Basic Conditions of Employment Act takes precedence over any employment contract unless the provisions in the employment contract or any other law are more favourable to the employee.

Note that section 49 to 50 provides for the amendment of the provisions of the Basic Conditions of Employment Act by means of collective agreements and the minister of employment and labour.

In relation to the Labor Relations Act, section 210 states that if any legislation is in conflict with the Labor Relations Act, the Labor Relations Act applies instead.

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