There is an employment contract where an individual agrees to work - in return for remuneration - under the direction of another person or entity.
The three criteria for the existence of an employment contract are:
* subordination;
* performance of work;
* compensation.
Concept not defined by law
Contract work: no definition.
No text of the Labour Code gives a definition of the employment contract.
Role of the Industrial Tribunal judge:
In case of dispute, only the industrial tribunal judge can say if there is or not an employment contract:
* after listening, reviewed, sought and verified: it is him who decides to call in contractual working relationship or not, the situation of a person that performs a service for the benefit of another,
* it must be entered when a person claims to have made a supply of labor for another in the context of an employment contract without the benefit of an employment contract.
Employment contract and definition by the Labour Court: 2 goals
Enter the industrial tribunal judge has two objectives:
* the legal recognition of the existence of a contract/a working relationship and the existence, an employee and an employer,
* the obligation for the employer:
- to pay wages and any benefits;
- to carry out certain formalities for the benefit of the employee including the formalities related to the end of the contract if the employment relationship has ceased (eg: delivery of an employment certificate).
Good to know: The Council of Employment Tribunal is a specialized tribunal in disputes between employers and employees.
Subordination
The subordination is the main criterion for identifying the existence of an employment contract.
The existence of a contract is not necessarily linked to a written contract as is the case of fixed-term or part-time employment contract.
Not always written
A working relationship between two individuals arises, not a trace written, but the fulfillment of a performance on behalf and under the authority of a person:
* this working relationship can exist if there is no contract and/or written and signed document, eg: a work contract "verbal", hiring is only oral;
* accordingly: there is a labor contract whenever there is subordination.
Subordination: Features
The subordination is defined by three characteristics:
Physical authority/legal person
* Exercise of direction, a command giving precise instructions, orders, directives.
* By having the power to monitor the implementation and enforce them including through sanctions and/or using coercion, eg: get from someone who is not satisfied (by the employer or boss).
Submission of another person (physical)
* Accept:
- to perform a benefit;
- to obey and apply the guidelines and instructions received;
- to receive orders and instructions.
* Observe:
- a hierarchy;
- a discipline;
- an organization;
- a working community (by the employee).
Running a service
* Accept accomplish and achieve one or some tasks, missions, achievements, etc. :
- useful and/or beneficial to the person to whom they are intended;
- and/or that represent a certain value that can generate a profit.
* Examples: mounting a system, driving a car, designing a computer program, welcoming guests, preparing a meal, etc (by the contract object).
Volunteer, help, employee trade representative...
Realize a benefit in certain settings do not imply the existence of an employment contract, for example:
* Volunteering at the service of an association, for example;
* family or friendly support: helping hand given to move, for example.
However, when the benefits are long lasting and/or repeated in number and in value, it can induce the existence of an employment relationship.
Particularly if such services are performed in a context:
* obedience to authority and respect of a discipline;
* and/or a global organization in which the provision is inserted (eg: as a commercial agent directed as employee trade representative in a distribution network).
No subordination imposed
An employment contract is valid if the subordination is accepted fully and completely.
He (or she) who agrees to work as part of an employment relationship must consent: no one can be forced to become employee against his will.
Free consent:
The consent of the person who agrees to work must be:
* free: that is to say, free from any pressure;
* enlightened: that is to say, given knowingly.
Given the foregoing, an employer can not hire:
* a minor under 16 years (except with parental accord + administrative authorization);
* a minor at least 16 years and not emancipated (unless authorized by their legal representative);
* a major under justice trust (except with the approval of the guardian).
Constraint subordination: contrary to the definition of the employment contract
Failure to observe these principles invalidates the employment contract:
* it is deemed never to have existed;
* the person being wrongly accepted is released from any commitment.
Outside the nullity of the contract, coercing a person to work against his will spring from the forced labor offense resulting in criminal prosecution and sanctions.
Note: It is forbidden to compel someone to become employer against his will, or to deceive him as he becomes without knowledge. During a recruitment process, if a candidate deliberately provides misleading information to deceive the employer on an essential part of his profile, his career, his know-how, etc., this can cause the posterior contract void of work.
