UNIT 2. INDIVIDUAL EMPLOYMENT AGREEMENT
In this section we consider an Employment Agreement. A good knowledge of specific nature of the contract will help the graduates while applying for a job in foreign companies; reduce the risk of misunderstandings. A well-written employment agreement assists the employee and employer to know what is expected from them and what they’re entitled to.
It is the contract between an employer and an employee under which an employee agrees to work for the stated remuneration. This type of contract binds between these two parties only. Consider the following example of the Employment Agreement (the text is taken from http://www.spabeauty.co.nz/site/spabeautynz/Employment%20Agreement%20Contract%20Template.pdf). After each clause the comments and translation of the terms are presented. Study them before reading the clause itself.
Translate each clause of the given Agreement paying attention to the new terms.
Preamble
This herein Individual Employment Agreement is concluded 16th December, 2016 between _______ hereinafter referred to as the Employer and________ hereinafter referred to as the Employee.
The preamble of any Agreement includes the nomination of the Parties, their legal addresses or registered offices, date of signing up the document. In this Clause you may also come across such legal terms as:
1) legal entity – юридическое лицо
2) established and operating under the legislation – созданный и действующий по законодательству
3) on behalf of – от имени
You should also pay attention to the demonstrative pronoun this before agreement or contract. In Russian avoid этот, use instead настоящий.
Parties of a contract as well as the subject and the word Agreement itself are always written with capital letter throughout the document.
Intent of This Agreement
1.1 The employer and the employee agree that they have a common interest in working together in good faith and in particular in:
i. Working together to ensure the successful and profitable operation of their establishment;
ii. Developing and maintaining a working environment where there is mutual trust and co-operation between the employer and the employee.
1.2 This Agreement replaces any previously expressed or implied written or oral contractual terms or provisions (including those implied by custom and practice) that may have existed prior to this Agreement.
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This Clause reflects the mutual consent of the Parties to enter into Agreement. It may contain the following words or word-combinations:
1) general provisions – общие положения
2) ensure – гарантировать
3) mutual trust – взаимное доверие
4) imply – косвенно выражать
5) prior to – до, раньше
6) in principle – в целом
7) on mutual agreement – по взаимному соглашению
Definitions
2.1 Full-time employees
Full-time employees are those employed for a minimum of forty (40) hours.
2.2 Part-time employees
Part-time employees are those employed for flexible hours depending on the requirements of the employer. Hours worked are expected to be less than 40 hours per week. A particular number of hours cannot be guaranteed.
2.3 “Ordinary Weekly Pay”
This includes everything an employee is normally paid weekly, including regular allowances and regular overtime if applicable. Intermittent or discretionary payments are not included.
2.4 “Average Weekly Earnings”
This is determined by calculating gross earnings over the 12 months prior to the end of the last pay period before the annual leave is taken, and dividing this figure by 52.
2.5 “Gross Earnings”
This includes wages and allowances but does not include reimbursements.
The definition of the terms used in the Agreement is obligatory for it reduces the risk of ambiguity and further misunderstanding. All terms in the contract should be given in the most clear and accurate way. Pay attention to the words employed in this clause:
1) full-time employee – работник с полной занятостью
2) part-time employee – работник с частичной занятостью
3) flexible hours – гибкий график
4) allowance – выплата
5) overtime – сверхурочные
6) intermittent – временный
7) discretionary – предоставленный на усмотрение
8) gross salary – заработная плата без учета вычетов
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9) reimbursement – возмещение, покрытие, возвращение (суммы)
3.0 Position And Duties
3.1 The employee will be employed as a _____________. The position is full-time / part-time. Because of the nature of the business, the employee may also be engaged in providing administration duties, and other work associated with the operation, administration and maintenance of the business.
3.2 The Agreement shall commence on __________20__ and continue until terminated in accordance with this Agreement.
This Clause contains the particular position or rank (должность) an Employee will hold. Moreover general description of the nature of the work is provided. Here you may meet the words as follows:
1) engage – заниматься чем-либо
2) commence – начинать
3) terminate – прекращать
4) maintenance – содержание, сохранение, поддержание
Hours And Days of Work
4.1 The ordinary hours of work should not normally exceed thirty (30) hours in any one week or 6 hours in any one day and may be worked on no more than five days of the week, Monday to Sunday inclusive. These hours will be paid at ordinary rates of pay irrespective of the day of the week or time of the day on which the work is performed.
4.2 The hours and/or days of work of part time employees may be increased or decreased by the employer in order to meet variations and fluctuations in trading patterns and labour requirements.
4.3 The employer shall, wherever reasonably practicable, give 7 days notice of any change to rostered hours. It is the responsibility of the employee to be aware of their hours of work and to keep the employer advised of any change to the employee’s availability to work and ensure that the employer has up to date contact details for the employee.
In this Provision the hours of work are revealed in detail. They depend on whether you are a full-time or part-time employee. Remember the following words:
1) rate –ставка
2) exceed –превышать
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3) inclusive – включительно
4) increase – увеличивать
5) decrease – уменьшать
6) fluctuation – колебание
7) pattern – паттерн, шаблон, модель
8) rostered – установленный
Trial Period
5.1 The employee shall be employed on a trial basis for the first 90 calendar days of employment commencing on the employee’s first day of work to enable the employer to determine the employee’s suitability for permanent employment.
5.2 Where the conduct or performance of the employee during the trial period is likely to affect continued employment, the employer shall advise the employee specifying the area of dissatisfaction, the improvement required, and the period of time by which that improvement is to be achieved.
5.3 During the trial period the employer may terminate the employment for any reason (including giving notice or termination) and the employee will not be able to challenge the dismissal as a personal grievance or in any other legal proceedings.
This Clause may also be called Probationary Period. It helps the employer to assess a new employee's suitability for the job. Employers can easily terminate employment contracts during trial periods if the employee appears to be unfit. You may meet here the words as follows:
1) trial period – испытательный срок
2) affect – воздействивать, влиять
3) advise – уведомлять
4) specify – определять, устанавливать
5) dissatisfaction – недовольство
6) improvement – улучшение
7) achieve – достигать
8) challenge – оспаривать; отрицать
9) dismissal – увольнение
10) grievance – трудовой конфликт
11) proceedings – деятельность; судебное разбирательство
Explain in English the meaning of the following words and expressions: ~ the employee’s suitability; ~ the area of dissatisfaction; ~to challenge the dismissal; ~ a personal grievance.
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Remuneration
6.1 The employee will be paid the remuneration equal 3.000 Euro per month by direct credit into a bank account nominated by the employee unless otherwise agreed.
6.2Deductions from wages
Deductions may be made from the employee’s wages in the following circumstances:
i. unapproved sick leave or other unpaid absences and for leave without pay which has been agreed between the parties;
ii. by agreement between the employer and employee;
iii. as otherwise provided by this agreement.
This Clause is devoted to the employee's monthly payment (amount, way of remittance) as well as the circumstances, under which the deductions can be realised from the employee's salary. Try to rememder the following words:
1) remuniration – оплата, вознаграждение
2) n o minate – назначать, определять
3) unapproved – не получивший одобрение, несанкционированный
4) otherwise – иной, другой
5) remittance – перевод денежных средств
Try to find other reasons which can lead to the deductions from employee's wages.
Termination of Employment
7.1 Where employment is terminated, in accordance with this Agreement, the employer or the employee must give the other either ________ weeks’ notice of termination or resignation. Where either party terminates the employment without giving and or working out this period of notice, one week’s wages shall be paid or forfeited as the case may be by the defaulting party.
7.2 At the employer’s discretion, the employer may reassign the employee to other duties during a notice period and this reassignment shall not constitute a unilateral variation to this agreement.
7.3 Nothing in this Agreement shall prevent the employer from dismissing the employee for serious misconduct without any period of notice or payment in lieu.
This Clause is compulsory in any Agreement since time frames of the document as well as the grounds for its cancellation are designated in it. Pay attention to the following words:
1) termination – прекращение действия (документа)
2) cancellation – //-//-
3) resignation – отказ от должности
4) forfeit – конфисковать, наложить штраф
5) default – невыполнение обязательств; неплатеж
6) discretion – свобода действий; полномочия
7) reassign – назначить на другую должность
8) constitute – назначать
9) unilateral – односторонний
10) dismiss – уволить
11) misconduct – нарушение дисциплины; неправомерное поведение
12) in lieu – вместо
How do you tnink, what cicrumstances can lead to the cancellation of the Agreement?Exchange your opinions with the groupmate.
8.0 Redundancyand Restructuring
8.1 Redundancy is where the Employee ’ s position is terminated because it has become superfluous to the needs of the Company.
8.2 The Company will consult with the Employee and provide the Employee the opportunity to give feedback, before making the decision that the position is redundant.
8.3 In the event that the Employee's employment is terminated due to redundancy, no compensation is payable and the Employee will be given one month’s notice or pay in lieu of notice.
This clause describes a situation where an employee’s position is surplus to the employer’s commercial needs. It is important to know that it is the position that is surplus, not the employee. If someone else replaces a “redundant” person in the same position, the redundancy is illegal. All employees whose employment is ending due to redundancy must be given notice in terms of the employment agreement. An employer can require an employee to work out their notice.
Words to remember:
1) redundancy – cокращение штатов
2) redundant – излишний, избыточный (о рабочей силе)
3) superfluous – излишний, избыточный
4) feedback – ответная реакция
Try to draft the notice of termination due to redundancy addressed to an individual employee. Work together with your groupmate. You may use some of the phrases: ~ Dear …; ~ We regret to inform you that your redundancy is; ~ As a result of … is no longer needed; ~ Unfortunately, this means that your position ...; ~ Final details of the redundancy payment will be available ...; ~ On behalf of the Company, I would like to thank you for your ...
Force Majeure
9.1 Neither party will be liable to the other for any failure to perform any obligations under this agreement by reason of circumstances beyond the party's reasonable control, including (but not limited to) natural disaster, adverse weather conditions, health epidemic or pandemic, civil unrest or war (“Force Majeure Event”). The party affected must:
(a) notify the other party as soon as practicable after the Force Majeure Event occurs, and provide information concerning the Force Majeure Event, including an estimate of the time likely to be required to overcome it;
(b) take all reasonable steps to overcome the Force Majeure Event and minimise the loss to the other party; and
(c) continue to perform that party’s obligations as far as practicable.
9.2 Without limiting this clause, you acknowledge that we will not be required to provide you with work or pay your remuneration, and you will not be required to work, where work is not available for you or you are unable to work due to a Force Majeure Event.
A Force Majeure clause (French for "superior force") is a contract provision that allows a party to suspend or terminate the performance of its obligations when certain circumstances beyond their control arise, making the performance illegal or impossible. A typical list of force majeure events might include war, fire, flood, hurricane, typhoon, earthquake, lightning, explosion, strikes, lockouts, prolonged shortage of energy supplies, and acts of state or governmental action prohibiting or impeding any party from performing its respective obligations under the contract. The other name of the clause can be Acts of God or Contingency.
Memorize the following words:
1) to be liable for – быть ответственным за что-либо
2) failure – невыполнение
3) natural disaster – стихийное бедствие
4) occur – происходить, случаться
5) concerning – касающийся
6) estimate – оценивать
7) overcome – преодолевать
8) acknowledge – подтверждать
9) remuneration – компенсация, оплата
Find in the box below other examples of Force Majeure.
| volcanic eruption bad weather civil disorder | funerals riot wedding | commotions sporting events labour strike | traffic jam terrorism explosions |
`What Parties of the Agreement should do when Force Majeure arises?
10.0 Waiver and Severability
10.1 No waiver of any breach of any term of this Agreement shall be effective unless that waiver is in writing and signed by the party against whom that waiver is claimed.
10.2 No waiver of any breach shall be or be deemed to be a waiver of any other or subsequent breach.
10.3 If any term, clause or provision of this Agreement or the application thereof is or is deemed to be judged invalid or unlawful for any reason whatsoever, it shall not invalidate the validity or application of any other term, clause or provision, and shall be deemed severed from this Agreement without affecting the validity of this Agreement.
The aim of The Waiver* clause is to ensure that a party's failure to enforce (осуществлять) its contractual rights, whether intentionally or by oversight, does not result in a waiver of those rights.
A party may decide not to strictly enforce the provisions of the contract on a particular occasion or under certain circumstances. It can, for example, accept late payments without insisting on an agreed penalty, or allow the other party to send goods of a different quality on occasion.
In general the Waiver clause provides that a party does not waive its rights to insist upon strict compliance with terms of the contract in the future simply because it has deviated from the enforcement of those terms in the past. (from contractstandards.com)
Severability** in a contract means that the terms of the contract are independent of one another, so that if a term in the contract is deemed unenforceable by a court, the contract as a whole will not be deemed unenforceable.
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* Waiver – ( всегда добровольный ) отказ от осуществления прав по договору.
(waiver of breach/violation/default – отказ от действий против любого нарушения ). Представляет собой право стороны на отказ от осуществления своего права, предусмотренного договором.
**Делимость (юр. в случае, если одно из условий договора почему-либо противоречит требованию закона или не может быть реализовано, оно может быть объявлено недействительным — однако все остальные условия, тем не менее, сохраняют свою силу).
Words to remember:
1) claim – предъявлять претензию, требование; возбуждать иск
2) subsequent – последующий
3) breach – нарушение
4) deem – полагать, считать
5) invalid – недействительный
6) to invalidate – признавать недействительным, лишать юридической силы
7) validity – действительность, юридическая сила
8) sever – отделять, разобщать
9) сo nstrue – истолковывать, интерпретировать
10) disclaimer – отказ от права (на что-либо), отречение
Translate the sentences:
1. The waiver by the Employer of a breach of any provision of this Agreement by Employee will not operate or be construed as a waiver of any other subsequent breach by Employee.
2. Neither party's failure or neglect to enforce any of rights under this agreement will be deemed to be a waiver of that party's rights.
3. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
4. An example of a written waiver is a disclaimer, which becomes a waiver when accepted.
5. In some cases, parties may sign a "non-waiver" contract, which means that no rights are waived, particularly if a person's actions may suggest that rights are being waived.
11.0 Successors and Assigns.
The rights and obligations of the parties hereunder are not assignable to another person without prior written consent; provided, however, that the Company, without obtaining Employee's consent, may assign its rights and obligations hereunder to a wholly-owned subsidiary and provided further that any post-employment restrictions shall be assignable by the Company to any entity which purchases all or substantially all of the Company’s assets.
successor – преемник, наследник; assign – правопреемник, цессионарий
The Successors and Assigns clause determines whether rights, obligations and duties under an agreement may be transferred in whole in or part to successor or assign, and under what conditions. Under U.S. law, contractual rights are freely assignable or delegable, unless prescribed or limited by agreement. (from contractstandards.com)
Note that a person who will receive money, property, or other assets, when a person dies is successor while a person to whom the heirs may in turn give that property according to the deceased’s will is assign.
Words to remember:
1) assignable – подлежащий переуступке
2) consent – согласие
3) assign – передавать права
4) sudsidiary – дочерняя, подконтрольная компания
5) entity – организация, юридическое лицо
6) substantially – в значительной степени, в основном
7) assets – активы
Decide whether the sentence correct or not:
1. An assignment occurs when one party transfers to a third party its right to receive the other party’s performance.
2. Contracts are freely assignable unless the contract itself dictates otherwise.
3. An assignment clause relieves the parties to an assignment from fulfilling the requirements of the applicable law to such assigned rights and obligations.
4. Party may assign or transfer any of its rights or obligations under this Agreement without the prior written approval of the other Party.
5. Successor and assign provision is a provision designed to make some third parties equally responsible for the performance of the agreement as the parties who have actually signed the agreement.
Arbitration
12.1 Any disputes arising under or in connection with this agreement shall be resolved by arbitration, to be held in accordance with the rules and procedures of the Arbitration Association.
12.2 All costs, fees and expenses of any arbitration in connection with this agreement which result in any decision or settlement requiring the company to make a payment to the executive, including, without limitation, attorneys fees of both the executive and the Сompany, shall be borne by, and be the obligation of, the Company. In no event shall the executive be required to reimburse the Company for any of the costs and expenses incurred by the Company relating to such arbitration.
12.3 Pending the outcome or resolution of any arbitration, the Company shall continue payment of all amounts to the executive without regard to any dispute.
Arbitration clause mandates arbitration of disputes about the rights, duties, and liabilities of the contracting parties. This provision results in the avoidance of litigation.
Remember the following words:
1) arbitration – разбор спора третейским судом; третейский суд, арбитраж
2) dispute –спор
3) resolve – решать, разрешать
4) procedure – процедура, методика; судебное производство
5) costs – расходы, издержки; судебные издержки
6) fee – плата, вознаграждение, гонорар
7) expenses – расходы, издержки
8) executive – исполнительное лицо
9) attorney – адвокат, юрист
10) bear (bore, borne) – нести, носить
11) reimburse – возмещать, покрывать
12) incur – потерпеть убытки; подвергаться
13) pend – откладывать решение
14) outcome – результат, исход, последствие
15) resolution – решение, постановление
16) litigation – судебный процесс, тяжба
Complete the sentences according to the above provision:
1.Any _____ shall be _____ by arbitration, to be held in accordance with the rules and procedures of the Arbitration Association.
2. All _____ in connection with this Agreement shall be borne by the Company.
3.Pending _____ of any arbitration, the Company shall continue payment of all amounts to the executive without regard to any dispute.
4.Arbitration shall be held in accordance with the rules and _____ of the Arbitration Association.
5.The executive is not required _____ the Company for any of the costs and expenses _____ by the Company relating to such arbitration.
General Provision
13.1 This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms or conditions hereof may be waived, only by a written instrument executed by both of the parties hereto. The failure of either party at any time or times to require performance of any provisions hereof shall in no manner affect the right at a later time to enforce the same.
13.2 This Agreement shall be governed by and construed according to the laws of the country applicable to agreements to be wholly performed therein.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written
Such provision gives general information concerning any modifications of the agreement, laws according to which the agreement can be governed and construed, possible languages in which the agreement can be written and the prevailinf force of one of them, etc.
Words to remember:
1) amend – вносить изменения, поправки
2) supersede – отменять
3) extend – пролонгировать
4) construe – интерпретировать, толковать
Execution Of Agreement
Dated this __________________ day of ______________20_________
Signed by
________________________________ ____________________________
Employee
___________________________ _________________________
Employer
In the final section of the Agreement the date of signing up is placed. Each Party puts its signature.
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