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Comparative Law Assignment Help
This is an elaborate article on the comparative legal study and its application in a specific legal subject matter. This is a thorough study of the various approaches of comparative law and its relevance in legal subject matter. This study also helps in understanding the importance and the usage of comparative legal study in the real-time scenario.
Comparative law is that branch of law that helps in comparing the legal jurisdiction of different countries and finding the correct ways to deal with a specific situation. The branch of comparative legal studies can be divided into two major categories: the macro study and the micro study. The macro study deals with the law in general. This branch of comparative law deals with the generic laws of different countries. However, micro studies are the comparison of various legal approaches in a specific case. This is one of the core aspects that help in the derivation of the conclusion of the comparative legal study.
Employment Law: Comparative Study
Under the following case study, we would adopt the macro approaches towards the employment sector in the France. Study of employment law in France would help in highlighting various aspects of the comparative legal study. Since it is a liberal country it is drastically different in its approaches from the countries following a strict approach.
Employment Legislation in France:
Considering the economic and the political situation of the country and the employment law is favourable to the employees. The laws of employment in France are comparatively liberal. The study of the history of France would help to understand the fact that the nineteenth century French laws carry a lot of evidence of threatening of the human dignity. (Berkowitz & Mu?ller-Bonanni, 2006)
The present employment laws of France help initiatives towards the improvement of the human dignity and are liberal. The employment laws of France have helped in facing the major problems of unemployment and helping the citizens to contribute to the nation. As per the French law, the contract between the employees and the employers needs to be consensual. Written form of agreement is however not necessary.
The validity of a contract between the employee and the employer is based upon the capacity of the employee. For example, a boy of the age 14-16 can only be employed during the time of his vacation and the employment period cannot exceed the half of the duration of his vacation.
As per French law, there are certain restrictions in the employment laws of France. Some of the restrictions are legal bindings like the prohibition of employing women and children in the mining industry. Some of the restrictions are strictly economical, for example in France one cannot hold more than one Job at a time. Hiding employment is also dealt strictly.
Other such fascinating features of the French employment law is the termination with mutual consent. Wherein the employment contracts are open-ended the statutory process provides that the approved termination by agreement is acceptable. Such terminations are neither dismissals or resignations and shall be written. (Blanpain, 2007)
The non-competition clauses suggest that these may be either incorporated through the employment contract or a collective agreement. The employment law also mandates to set up a work council for every company employing 50 or more employees. The council should meet at least once in two months.
It also provides for the dismissal based on the economic grounds. It ensures that employers undertake efforts to redeploy the employees that are threatened by the redundancies. The employer is also required to provide a declaration prior to recruitment to the local social security office for registration of the employee towards the social security, unemployment insurance and health services at work.
Discrimination at workplace:
The French workplace still is faced with the age-old dilemma of sexism. It is found to be one of the most apparent aspects at the workplace. The approaches so adopted to tackle these issues is that whereby the French government encourages the citizens to sign-up for the anti-sexism courses in order to provide teachings with regards to avoiding the casual discrimination. Under the laws of Australia, the state and the territory governments have focussed on introducing the various sets of legislations to curb such practices. Some of these legislations are such as the Age Discrimination Act, 2004, Disability Discrimination Act, 1992, Racial Discrimination Act, 1975 and Sex Discrimination Act, 1984.
In USA, it is provided that the male and female employees cannot be given different benefits as it pertains to different benefit costs. It lays down that different benefits should not be provided to the wives and families of male employees and not for the female employees. The UK employment law provides for protection against issues related to dismissal, employment terms and conditions, training, recruitment and redundancy. (Blanpain, Nakakubo, Araki, & Barnard, 2008)
Similarly, The French employment law may considerable adopt approaches with respect to maintaining different legislations to deal with the sexist approach at the workplace by providing equal benefits and penalties in regards to employment regardless of the gender of the employee. A separate commission should be instated to meet the development of the reviews and introduction of new legislations to tackle the gender-bias so prevalent in today’s economy.
The background checks in the USA are the employer’s discretion. Several states of the US have enacted laws to restrict the early on-set questions of the criminal record investigation. Wherein certain states allow the question on the first interview. As opposed to the approach in the US, the UK determines that the background checks can only be carried out by the employee themselves. It also requires the consent of the employee to carry out the background checks.
In Germany, the presumption is kept that the employee is the primary source of the information and can be refused by them to answer. In such cases, third party check s are allowed with the employee’s consent. In Netherlands, only the data required for the employment purpose may be asked for.
In France, it is determined that the employer is only allowed to enquire regarding the matters that are relevant to the job. Unlike the legislations in the Netherlands and the Germany, the criminal record is only asked for in particular cases. It may be considered that the liberal approach towards the background checks shall be fastened to deal with issues of criminal activities and validity of the data provided by the employee. (Countouris, 2007)
The employment laws shall also determine the participation of the employee in allowing for the background checks in terms of consent as practiced in the USA. The French legislation is silent on the aspect of the consent to be gathered from the employee in order to carry out a background check. The criminal records available in regards to employment laws or otherwise are also not classified.
The minimum wages in the Australia are covered by the award that differentiates based on the age, geographical location and industry of the employee. Employees that are of age more than 21 years are not covered by the award. The minimum wage is $17.70 per hour and $672.70 per week as set out by the Fair Work Commission. The minimum wage for apprentices and trainees are set nationally. (Finkin, 2003)
In Austria the minimum wages are set out by the National Collective Bargaining agreement by job classification for every industry. In Canada, minimum wage is set out by different provinces and territories between $10.45 to $13.00 per hour. The minimum wage in China is set out locally. There is no minimum wages for Denmark, Ethiopia, Iceland or Italy. In Germany, the higher minimum wage is set out by the collective bargaining agreements as enforceable by the law.
For France the minimum wages for the employees is €1,480.27 per month. The French legislation is silent on various issues related to minimum wage for the apprentices or trainees. It is also found to be quiet on issues of the local attributed that contribute to setting out the minimum wages. It is to be determined that the minimum wages shall vary with request to the industry or not. The legislation should be amended accordingly to regulate the French economy smoothly while determining various aspects of the minimum wages set out in the economy to address the issues of multi-dimensional approach towards determination of the minimum wages.
The dismissal process under the French legislation considers the employers to give a written notice to the employee for a preliminary meeting. The 5 day gap should exist between the notice and the meeting should be present. The interview shall contain he details of the dismissal and a platform to listen to the employee’s remarks. The dismissal letter shall be sent over after two working days from the interview via registered mail. The rules with regards to benefits at the time of dismissal shall be followed. The possible ground of dismissal may be that of disciplinary dismissal, dismissal for account of incompetence or account of long term absence. (Blanpain, Nakakubo, Araki, & Barnard, 2008)
In the UK the dismissal process is comparatively flexible. This implies that it only requires a notice to determine the termination of the contract and the minimum notice period whichever is longer to dismiss form the position. The employee rights are specified with regards to requirement of the written statement asking the employer to provide the reasons for dismissal after completing 2 years of the service. The reasons of dismissal in the UK is that of the redundancy, summary dismissal, incompetence or illness. The dismissal in Germany is the hardest than anywhere else in Europe. The Dismissals Protection Act provides for the procedure, formalities and costs to be applied on termination and are primarily provided in the contract along with the right to not be dismissed unfairly. (Countouris, 2007)
It may be determined that the French legislation shall be more clear on points in regards to summary dismissal and the rights of the employee at the time of dismissal to provide a better outlook towards the fairness of the dismissal. The same asks for the simplification of the dismissal process and not elongate it in order to tackle the wasted resources on employees that are soon to be out turned by the company. It should also consider forming a Dismissals Protection Act like that of Germany to create the fair approach towards dismissals.
Study of the employment and the labour law of different countries can help in making better legal decisions. This is the reason why the comparative study of law is done. This helps in time to time evaluation of the law. The comparative legal study can help in the analysis that helps in the framing jurisdictions in the best interpretable way. As stated in the above case study, the employment laws of the different countries are different however the main purpose of the employment law serves the same purpose.
Berkowitz, P. & Mu?ller-Bonanni, T. (2006). International labor and employment law. Chicago, Ill.: Section of International Law, American Bar Association.
Blanpain, R. (2007). The global workplace. Cambridge: Cambridge University Press.
Blanpain, R., Nakakubo, H., Araki, T., & Barnard, C. (2008). New developments in employment discrimination law. Austin: Wolters Kluwer Law & Business.
Countouris, N. (2007). The changing law of the employment relationship. Aldershot, England: Ashgate.
Finkin, M. (2003). Privacy in employment law. Washington, D.C.: Bureau of National Affairs.