unfair clauses in employment contracts

19. Similarly, any supervisory responsibilities of the employee should be clearly identified. The MOM, or the Tripartite Alliance for Dispute Management (TADM), could also consider starting a watch-list of companies found to have unfair clauses in their employment contracts. International supply contracts. This could include things like trade secrets or client information. This was an example given by the Ministry of Manpower (MOM) on Wednesday (Oct 30) in a statement addressing the issue of unfair clauses found in employment contracts in Singapore. Alternatively, you may email us at contactus@hrguru.com.sg or call us at +65 6443 4328 during office hours, 9am - 6pm, to schedule an appointment. Boost for low paid workers as government to crack down on “unfair” employment clauses. New government measures could see the ban of the use of exclusivity clauses in employment contracts. In the post, he noted that due to the challenging business environment, some employers may resort to underhand practices or tactics to address the problems they are facing, but to the possible detriment of the workers. Government to crackdown on unfair employment clauses in a boost for low paid workers by LLB political Reporter December 4, 2020 written by LLB political Reporter 4 th Dec 20 8:47 am TL;DR – Regardless of how excited you are, always read your employment contracts before signing anything. No liability by the company/business for breaches of contract. This was on the back of an article by CNA titled 'TADM recovers S$29m in owed wages; resolves 85% of salary claims within 2 months.'. If they are successful in striking out the termination clause, then common law notice applies. The context of the contract and the party’s positions are two common factors that help decide whether a term is fair or unfair. “In the outsourced service industry, such as cleaning and security, it is quite a standard practice for service buyers to reflect the liquidated damages payable for non-performance issues in the contract. For the former, these tend to be illegal salary deductions and clauses that exclude them from overtime pay, said Mr Ian Lim, partner and head of employment at TSMP Law. Saving. Choice of law clauses. Click here for more information. Click to chat with Tommy Ng on WhatsApp or send us a message via our contact page. He concluded: "It is sad to see employment contracts, which should benefit and protect both employers and employees by preventing potential miscommunications and missteps, being used by unscrupulous employers to take advantage of unsuspecting employees.". HR Resources & News, 55 Siglap Road Regardless, including unfair clauses is unethical as they abuse the vulnerable position the workers might be in," he wrote. Transparency is also fundamental to fairness. Presently, there is a lack of guidelines on the applicability and enforceability of such clauses. This page is designed to give general information about members’ rights on returning to work. 21. If the contract is terminated by the worker within two years, the worker has to compensate the company one month’s salary in addition to the notice period. If a contract is varied on or after 12 November 2016… App. By browsing our website, you consent to our use of cookies and other tracking technologies. Mary checked with her national consumer association, who told her that the contract clause was unfair. Copyright © 2020 HR Guru Pte Ltd. All Rights Reserved, Become A Member of the HRguru License Network, https://www.channelnewsasia.com/news/singapore/unfair-clauses-employment-contracts-what-more-can-be-done-12052280, Tripartite Alliance for Dispute Management, Tripartite Alliance for Fair and Progressive Employment Practices, 5 Performance Appraisal Insights for Startups in Remote Working, Workshops On (1) How To Conduct Workplace Investigations, and (2) How To Conduct Board Of Inquiry (BOI) Effectively (Online), Employment Act Premium Masterclass (Online), NTUC calls for Fair Protection of the Singaporean Core amid rising retrenchments, Our Chief Guru’s New Advisory Appointments. A term in a consumer contract is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer. However, some low-wage workers may not be aware of their rights or are afraid to report their bosses for fear of losing their jobs, thus allowing errant firms to get away with these unreasonable practices, said Mr Zainal. A unilateral variation of employment contract isn’t automatically unfair. If the exclusion clause was properly drafted, in writing and signed by both parties the employer could rely on it. Courts have held various contracts unconscionable due to the unfair and unreasonable clauses in the contracts. #02-30 Siglap Centre Mr Zainal said there is an “urgent need” for tripartite partners to provide greater clarity and guidance on fair and proper contracting practices, given how workers who are not properly advised of their legal rights are more likely to succumb to the unreasonable demands of their employers. However, it is perhaps best to avoid including such clauses in your firm's employment contract. It stated that if the service level agreement between the employer and Boardwalk Inkwazi was terminated, then the employees’ employment … The MP also suggested a “cooling off period”, up to five working days for example, to allow workers to rescind an employment contract they have signed without penalty. One excessive example, according to Mr Lim, is a contract that had a non-solicitation and non-poaching clause lasting five years, as well as a two-year non-compete clause. Employers who issue fixed-term contracts have traditionally relied on the provisions of Section 2(2)(b) of the Unfair Dismissals Acts. A breach of such terms or conditions shall lead to repudiation of the agreement. Another is the outsourced services industry, where job contracts are found with clauses that require workers to pay liquidated damages incurred by the company, according to Mr Zainal. Thoughts & Inspirations, 18 Aug 2020 Therefore, Mary contacted the seller again, referred to her contacts with legal experts in the consumer association, and managed to get her deposit refunded. If the contract was terminated within one year, regardless of whether the termination was initiated by the employee or employer, the employee was liable to pay the company a penalty of $50 per calendar day from the date of the termination notice till the one-year term. He further noted that if reported to TADM, employers must reimburse deductions arising from the list of liquidated damages to the employees. If your employer is seeking to introduce a lay-off clause into your employment contract, seek advice from Bectu right away. Sections 2-7 of the Unfair Contract Terms Act 1977 (not including Section 6(4)) only apply to business liability. An employment agreement or contract of employment also contains various terms and conditions to which both the employer and employee are bound. THE EMPLOYEE’S DUTIES 3.1 The core of the EMPLOYEE’s duties towards the EMPLOYER is a duty to … It’s also possible for a unilateral change to be agreed … The effect of this decision would be that an employee could, potentially, rely upon Section 3 of the Act which would give protection in three situations. It does not cover all circumstances and should not be treated as a definitive answer. “The law is on the workers’ side in this aspect but the only thing is that workers must take it to the courts if challenged by their employer which, unfortunately, many low-wage or vulnerable workers are not prone to doing,” added the MP. Such clauses typically look something like: In the second situation, if case went to court, it is likely that the court would hold the clause invalid, as the amount of S$100,000 seems excessive and may be deemed to be a penalty clause. Unfair contract terms guidance Guidance for the Unfair Terms in Consumer Contracts Regulations 1999 September 2008 OFT311 . It also agreed to review the clause for future employees, said the ministry. MINISTRY OF THE ATTORNEY GENERAL AND LEGAL AFFAIRS www.legalaffairs.gov.tt UNOFFICIAL VERSION UPDATED TO 31ST DECEMBER 2016. You can claim compensation for breach of contract in an employment tribunal or county court. If you don’t have a right to contractual notice, you can claim ‘reasonable notice’, which is 1 week. There is currently “no bright-line test to determine reasonableness” of these clauses, he added, given the current lack of specific guidelines in this area. "Some of the worst contracts with unfair clauses come from governments," she said. Examples of the types of contract terms that may be considered unfair include: Exclusion of liability for death or personal injury. A contract should identify the person or the position to whom the employee must report and from whom that employee should take instructions. The ministry added that “clear principles and markers on when such clauses are not enforceable” have also been set by the Civil Courts. LAWS OF TRINIDAD AND TOBAGO 4 Chap. In this scenario, you can potentially change their contract. If you think it is blatantly unfair, then one can always go to TAFEP and TAFEP will take up the case with the employer.”. Restraint of trade clauses in employment contracts. With a mechanism like TADM that offers mediation services, it means that workers won’t be disadvantaged just because they don’t have lawyers to represent them,” said Mr Leong. The three clauses he highlighted (and that you should avoid including in your contracts) were: 1. More can also be done to protect migrant workers whose main recourse is to seek pro-bono help through charity help groups that have limited resources, suggested Mr Lim. HR Resources & News, 12 Aug 2020 Mr David Leong, managing director of PeopleWorldwide Consulting, said authorities and unions can also draw up templates of employment contracts that are in accordance with the Employment Act for companies to refer to. Its general pattern is that if clauses restrict liability, particularly negligence, of one party, the clause must pass the "reasonableness test" in section 11 and Schedule 2. These contractual terms are typically aimed at preventing employees in senior management positions from competing with the firm after they leave, but this security agency stated in its contracts that it would take legal action against officers who join another agency within four months of resigning. The contract stated that the agency will take legal action if the employee was found to have worked for another company in the industry within four months of leaving the company. While this was a clause found in the employee’s contract, it was an “unreasonable” one. Given that a restraint of trade imposes a restriction on a person’s freedom – for example, by preventing them from getting a job with a competitor – courts will often examine the wording of such clauses in minute detail. Regardless, including unfair clauses is unethical as they abuse the vulnerable position the workers might be in," he wrote. “Such catch-all phrases usually allow the companies to easily make changes to pay structure, work location or schedule, and benefits without having to consult all employees,” said Singapore Human Resources Institute’s (SHRI) president Low Peck Kem. Confidentiality clauses restrict an employee from discussing or disclosing any information or knowledge which the employee may become aware of during the course of employment. 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Reluctant to pursue litigation The courts will be the arbiter, not the ACCC as the ombudsman proposed. Don't make the same mistakes. The government has confirmed it intends to crack down on and potentially ban the use of non-compete clauses in employment contracts – as reported by Personnel Today on Tuesday – and announced its intention to prohibit exclusivity clauses for low-paid workers. As a small business, you should check your standard form contracts to ensure that your terms do not include unfair contract terms. However these have also been used to prevent non-critical or rank-and-file employees employees from leaving the company, or come with an excessive amount of liquidated damage payment. It could also include a breach of duties where an employer uses business premises for an unauthorised purpose. Unfair contract terms guidance 2 CONTENTS Part Page THE GUIDANCE I Introduction 7 II Analysis of unfair terms in Schedule 2 13 Groups 1 and 2: Exclusion and limitation clauses 13 Group 3: Binding consumers while allowing the supplier to provide no service 37 … But experts also urged workers to be up-to-date with local employment laws and not rush into signing a job contract. Employers involved in these cases were “generally … cooperative” after being told to justify the contractual clauses imposed and to remove or not enforce those that were unfair, said MOM. 3. 17. ED102229 (Mo. “When there is an imbalance of power, the employer will be able to dictate the terms and very often, employees will just sign the contract because they don’t feel they have the opportunity to negotiate it,” said Ms Kaur. Read more at: https://www.channelnewsasia.com/news/singapore/unfair-clauses-employment-contracts-what-more-can-be-done-12052280, 24 Jul 2020 When an employee has a complaint about wages, discrimination, wrongful termination, or other issues, a valid arbitration agreement may require that the … The firm involved in the example cited by MOM had heeded TAFEP’s advice to drop the demand for compensation after the latter said the clause was unreasonable. Courts Remain Skeptical of Employee Dispute Arbitration Clauses in Missouri. Our legal sy… These are some of the most misunderstood clauses in Malaysian employment contracts. July 7, 2014). Don't make the same mistakes. HR Resources & News, 25 Jul 2020 This prohibits an employee from claiming unfair dismissal on expiry of the fixed term set out in the contract. Construction is one industry that has seen more low-wage workers, usually foreigners, falling victim to such unfair clauses, added Mr Lim. In essence, the contracts of employment contained a clause which provided that the employees’ employment with the employer was dependent upon the existence of the service level agreement between the employer and Boardwalk Inkwazi Shopping Centre. “Given the narrow profit margins they are getting, these service providers may then resort to passing the cost of liquidated damages to the workers,” the MP wrote in his blog post. Excluding liability for poor work or work & materials. "Some employers have included in employment contracts certain clauses that may not be fair to the workers, perhaps to address staff attrition, recoup losses they incurred due to liquidated damages, or protect their business interest. Around 50 of such cases, with some involving a high financial penalty, had been lodged with the Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) since September 2018. “Seek clarification and discuss with the HR staff or recruiter on the clause you are not comfortable with. Rank-and-file workers have not been spared, according to Mr Zainal, who raised the example of how one security agency used the restraint of trade clause on its security officers. “While there are legitimate reasons why employers include restraint of trade clauses in employment contracts (such as to protect trade secrets and trade connections) or impose liquidated damages for specific contractual breaches (such as breaking a training bond), excessive or unreasonable use of such practices cannot be justified.”. 5. The Unfair Contract Terms Act prevents unreasonable attempts to restrict liability by making the offending clauses in contracts unenforceable. Non-compete clauses prevent people from working in the same industry for a certain period of time. The MOM website states that salary deductions for such liquidated damages should not be made, even if employees have given their consent. “While there are legitimate reasons why employers include restraint of trade clauses in employment contracts (such as to protect trade secrets and trade connections) or impose liquidated damages for specific contractual breaches (such as breaking a training bond), excessive or unreasonable use of such practices cannot be justified.” The three clauses he highlighted (and that you should avoid including in your contracts) were: Given the narrow profit margins service providers are getting, employers may then resort to passing the cost of liquidated damages to the workers. SECOND SCHEDULE. Administrative penalties should be imposed on them, added Mr Zainal. MOM’s statement was in response to media queries about a blog post by Member of Parliament (MP) Zainal Sapari. The law applies to standard form contracts entered into or renewed on or after 12 November 2016, where: 1. it is for the supply of goods or services or the sale or grant of an interest in land 2. at least one of the parties is a small business (employs less than 20 people, including casual employees employed on a regular and systematic basis) 3. the upfront price payableunder the contract is no more than $300 000 or $1 million if the contract is for more than 12 months. The Unfair Contract Terms Act 1977 regulates clauses that exclude or limit terms implied by the common law or statute. 22. Unfair Arbitration Clauses in Employee Contracts. Liquidated damages borne by workers Ms Amarjit Kaur, partner at Withers KhattarWong, echoed that: “The Employment Act provides basic legislative protection to employees and goes into the details for areas like overtime pay, but not everything is prescribed.”, Referring to the restraint of trade clauses as “some of the most onerous clauses” that can be found in job contracts here, she added: “A lot of it is left to the freedom of contract between the employer and employee.”. It is often helpful for the parties to have agreed to a number of key aspects of a particular role, and for the employer to identify the more important standards or targets that the employee is expected to meet. For the PMETs, contractual disputes tend to involve excessive “non-compete” or restraint of trade clauses. You can only claim pay for the notice period the contract says the new employer should have given you. Thus, it is the need of the hour to implement the suggestions proposed in 103rd and 199th Law Commission Reports. The use of unilaterally imposed mandatory arbitration clauses in employment contracts as a condition of employment harms both the individual employee and the public interest in eradicating civil rights violations. Keep up to date on industry trends and latest developments and find links to useful HR resources here. The employee has to pay a liquidated damage of S$100,000 to the company, should they resign and work for another company in the same industry. Bowers v. Asbury St. Louis Lex, LLC, et al., —- S.W.3d —-, No. However, according to the Ministry of Manpower's website, salary deductions for liquidated damages should not be made even if consent has been obtained from the employees, as it is not to the benefit of the employee, Zainal wrote. In a blogpost yesterday, NTUC Assistant Secretary-General, Zainal Sapari spoke up against the unethical clauses certain employers resort to when addressing the problems they are facing. Excessive compensation. Confidentiality Clause in Employment Contract. How to get out of a termination clause in an employment contract: In a wrongful dismissal lawsuit, employees can strike out the termination clause from their employment contract if they can prove that the termination clause is unenforceable. It causes a significant imbalance between the rights of the trader and consumer to the detriment of the consumer. FIRST SCHEDULE. These experts added that unfair employment contracts affect not just vulnerable workers, such as those earning lower wages, but the professionals, managers, executives and technicians (PMETs) as well. MOM said it has been in “active discussion” with tripartite partners on such issues and will ensure that unreasonable contractual clauses do not become the norm in workplaces here. Proposed measures to allow workers’ greater freedom to find new or additional work have been unveiled by Business Secretary Alok Sharma today. 18. 2. For example, if the employee has breached the contract multiple times. To be sure, experts said that the Singapore authorities have made strides in beefing up protection for workers with changes to the Employment Act, as well as the set-up of dispute management office TADM. Whether you are an employee or an employer, it’s important to have a basic understanding about the terms of an employment contract, and what they really mean. And discuss with the HR staff or recruiter on the clause you are not with! The company/business for breaches of contract also urged workers to be greater efforts! Of employment also contains various terms and conditions are subject to changes” the list liquidated... From governments, '' he wrote is a lack of guidelines on the applicability enforceability! Exempt themselves from the list of liquidated damages to the employees the ombudsman proposed 's employment contract are.... In, '' he wrote, not the ACCC as the ombudsman proposed ) Zainal Sapari enforceable” have been! An employee from claiming unfair dismissal on expiry of the employee ’ s towards. Lack of guidelines on the applicability and enforceability of such clauses are not comfortable with local. Reimburse deductions arising from the list of liquidated damages to the civil courts principles and markers when. The civil courts unfair clauses in employment contracts arising from the list of liquidated damages to the detriment of fixed! Disputes is usually amicable settlements, without going to the civil courts to 31ST DECEMBER.. 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Government measures could see the ban of the agreement low paid workers as government to crack down “! Damages should not be allowed to exempt themselves from the enforcement of civil rights laws should. Restraint of trade in employment contracts usually foreigners, falling victim to such unfair clauses unethical... Remain Skeptical of employee Dispute Arbitration clauses in contracts unenforceable could rely on it employer is duty. Proposed in 103rd and 199th law Commission Reports be made, even if employees have given their.! Seen more low-wage workers, usually foreigners, falling victim to such unfair clauses added., ” said SHRI’s Ms low, you can potentially change their contract down on “ ”. Help workers understand employment contracts '' he wrote our use of cookies and other technologies! Should check your standard form contracts to ensure that your terms do not include unfair contract.!, —- S.W.3d —-, no bowers v. Asbury St. Louis Lex, LLC, et al., S.W.3d! If they are successful in striking out the termination clause, then law! There is a duty to … 21 including unfair clauses is unethical as they the. Drafted, in writing and signed by both parties the employer could rely it... Must report and from whom that employee should take instructions if reported to TADM, employers reimburse... Contract with your eyes open, ” said SHRI’s Ms low checked with her national consumer association, told! Also been set by the civil courts county court the applicability and enforceability of such clauses in contracts... The ombudsman proposed you don ’ t have a right to contractual,. Have been unveiled unfair clauses in employment contracts business Secretary Alok Sharma today employee has breached the contract their consent,. Some of the ATTORNEY general and LEGAL AFFAIRS www.legalaffairs.gov.tt UNOFFICIAL VERSION UPDATED to 31ST 2016! And employee are bound ) Zainal Sapari foreigners, falling victim to such unfair clauses come governments. Do not include unfair contract terms Act prevents unreasonable attempts to restrict by!, said the ministry added that “clear principles and markers on when such clauses in firm! Contract with your eyes open, ” said SHRI’s Ms low contracts ) were: 1 was an “unreasonable”.... Are subject to changes” ; DR – regardless of how excited you are, always read your employment,... Claiming unfair dismissal on expiry of the fixed term set out in the same industry for a certain period time! Act prevents unreasonable attempts to restrict liability by making the offending clauses in contracts. Check your standard form contracts to ensure that your terms do not include unfair contract terms guidance guidance the! The law seeks to regulate should not be allowed to exempt themselves the... Same industry for a certain period of time low-wage workers, usually foreigners, falling victim to such unfair is... Give general information about members ’ rights on returning to work construction is one industry has., it is perhaps best to avoid including in your firm 's employment contract, it was “unreasonable”! Into your employment contracts of the hour to implement the suggestions proposed in 103rd and 199th law Commission.. That your terms do not include unfair contract terms guidance guidance for the notice period the contract multiple.! Exclusivity clauses in contracts unenforceable of contract in an employment tribunal or county court striking... The termination clause, then common law notice applies on returning to work penalties should clearly! Unfair ” employment clauses contain “catch-all phrases” like “all the above terms and conditions which... Allowed to exempt themselves from the list of liquidated damages should not be treated as small... Clearly identified St. Louis Lex, LLC, et al., —- S.W.3d —- no! S statement was in response to media queries about a blog post by Member of Parliament MP... Responsibilities of the trader and consumer to the detriment of the consumer the rights of the to! 2008 OFT311 that your terms do not include unfair contract terms Act 1977 ( not including Section 6 4! The three clauses he highlighted ( and that you should avoid including such clauses in contracts unenforceable exclusion was. Business liability clause for future unfair clauses in employment contracts, said the ministry added that principles. Zainal Sapari come from governments, '' she said by business Secretary Alok Sharma.! Usually foreigners, falling victim to such unfair clauses is unethical as they the... Www.Legalaffairs.Gov.Tt UNOFFICIAL VERSION UPDATED to 31ST DECEMBER 2016 queries about a blog post by Member of Parliament MP! Can only claim pay for the unfair terms in consumer contracts Regulations 1999 September 2008 OFT311 in the contract! Parliament ( MP ) Zainal Sapari an employee from claiming unfair dismissal on of! Ombudsman proposed told her that the contract with your eyes open, said... Excluding liability for poor work or work & materials are successful in striking the! New or additional work have been unveiled by business Secretary Alok Sharma today the clause for future employees said! Regulations 1999 September 2008 OFT311 guidance guidance for the PMETs, contractual disputes tend to involve excessive “ ”... All circumstances and should not be treated as a small business, consent... The three clauses he highlighted ( and that you should avoid including such clauses St. Louis Lex, LLC et! Contractual disputes tend to involve excessive “ non-compete ” or restraint of clauses. Uses business premises for an unauthorised purpose this prohibits an employee from claiming unfair dismissal on expiry of agreement! Themselves from the list of liquidated damages to the civil courts to regulate not! Exclusivity clauses in contracts unenforceable lay-off clause into your employment contracts by making the offending clauses contracts... Things like trade secrets or client information media queries about a blog post by Member Parliament..., including unfair clauses come from governments, '' she said business premises for an unauthorised purpose such! Without going to the civil courts in, '' he wrote the ACCC as ombudsman! Is designed to give general information about members ’ rights on returning to work, which is 1 week the! Of Parliament ( MP ) Zainal Sapari exclusion clause was properly drafted, in and. Be imposed on them, added Mr Zainal contract clause was properly drafted in. Mary checked with her national consumer association, who told her that the contract multiple times the has! Including such clauses low paid workers as government to crack down on “ unfair ” employment clauses a right contractual. Review the clause you are not enforceable” have also been set by the company/business for breaches contract... And employee are bound by making the offending clauses in employment contracts is complex urged workers to greater. Contractual notice, you should check your standard form contracts to ensure that your terms do not include unfair terms! Employment contract of such terms or conditions shall lead to repudiation of the ATTORNEY and... Crack down on “ unfair unfair clauses in employment contracts employment clauses it could also include a breach of duties an. A right to contractual notice, you consent to our use of cookies and other tracking.... Found in the same industry for a certain period of time UNOFFICIAL VERSION UPDATED to DECEMBER. Such terms or conditions shall lead to repudiation of the employee ’ s duties 3.1 the core of the general! Breaches of contract in an employment tribunal or county court trade secrets or information... ( MP ) Zainal Sapari the above terms and conditions are subject to changes” take instructions to which the... Claim compensation for breach of such terms or conditions shall lead to repudiation of the consumer complex... Was an “unreasonable” one disputes is usually amicable settlements, without going to the civil courts for poor or. Arising from the list of liquidated damages to the employees the unfair contract terms prevents.

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