Employment Contract: Concept, Character, and Regulatory Effects
II. INDIVIDUAL RIGHTS AND COLLECTIVE WORK UNIT VII THE EMPLOYMENT CONTRACT
I. CONTRACT WORK: CONCEPT AND CHARACTER.
1. CONCEPT .- According to the ET (art 1.1), an employment contract is the legal relationship that arises between workers who provide voluntary services for remuneration as an employee within the scope of organizations and direction of another person, whether natural or legal person, and she called the employer or employer.
It differs from a Civil contract (Article 1254) by the inseparability between the employee (subject to the contract) and provision of activity (under contract). Thus, the performance of work is personal.
As in any contract, work in 2 aspects are distinguished:
a) a function that creates or is the relationship jca work, which is the agreement of wills between employer and employee agree to be bound to each other, and
b) legislative or regulatory effects of the relationship jca. created, which being a contract of continued performance, prolong these effects over time as labor remains the relac jca.
The autonomy of the parties in the relationship obligational loses relevance of the regulatory function of the effects of the relationship, because the mandatory state standards work (heteronomous regulation) are imposed “from outside” the autonomy of parties, whose room for maneuver is very limited, except to improve working conditions.
2. CHARACTER OF THE EMPLOYMENT CONTRACT .- This contract is:
bilateral: generate obligations for both parties.
consideration: each party has a burden to the worker prestações. services; the employer to pay.
synallagmatic: each service is a prerequisite for their mutual.
commutative each party agrees to certain benefits.
of successive chain: its effects linger. And,
consensual: is perfected by mere consent of the parties.
Furthermore, analyzing the art 1 ET, we find the following notes:
a) Voluntariness .- The services owed by the contract are to be made voluntarily, as an expression of free nature of work, which is collecting the RHS of Labor.
b) Servicing .- It is the basic obligation of the worker and the contract work. The benefit is activity, not outcome, and must be paid personally by the worker.
c) Compensation .- The salary includes the employer’s contractual debt. If no payment, no contract.
d) alienation .- The services are provided by the work for the employer, who acquires a prioriand original ownership of the fruits or results of work.
e) dependence or subordination .- For the ET, the worker provides services “in the field of organization and management” of the entrepreneur, which implies that one has to be within the governing and disciplinary circle it.
3. ESTABLISHING AND REGULATORY EFFECTS OF EMPLOYMENT CONTRACT. Both effects are given in this contract, the worker-employer agreement is the real contract, which simultaneously generates the legal relationship between the two sides work and regulated.
Civilregula C. While the expression of intent, governed by the principle of party autonomy, ET jca regulates the relationship born of such agreement, from its source to its extinction, regulation of the employment relationship is imposed “from outside” State or agreement, which the autonomy loses strength: Art 3.1
ET: “The dchos and duties regarding the employment relationship are regulated:
1, by the laws and regulations of the State;
2nd, by collective agreements, and (in the absence of both),
3rd, by the will of the parties expressed in the employment contract.
Furthermore, the parties can not establish, to the detriment of the worker, “less favorable terms or contrary to law or collective” (art3.1.c ET), which are reserved only to the employment contract, in its regulatory aspect of employment, improving working conditions and mandatory set of laws and collective agreements.
II. INDIVIDUAL RIGHTS AND COLLECTIVE WORK UNIT VII THE EMPLOYMENT CONTRACT
I. CONTRACT WORK: CONCEPT AND CHARACTER.
1. CONCEPT .- According to the ET (art 1.1), employment contract is the legal relationship that arises between workers who provide voluntary services for remuneration as an employee within the scope of Organizacoes. and direction of another person, whether natural or legal person and she called the employer or employer.
It differs from C. Civil contract (Article 1254) by the inseparability between the employee (subject to the contract) and provision of activity (under contract). Thus the performance of work is personal.
As in any contract, work in 2 aspects are distinguished:
a) a function that creates or is the relationship jca work, which is the agreement of wills between employer and employee agree to be bound to each other, and
b) legislative or regulatory effects of the relationship jca. created, which being a contract of continued performance, prolong these effects over time as labor remains the relac jca.
The autonomy of the parties in the relationship obligational loses relevance of the regulatory function of the effects of the relationship, since the charactermandatory state standards work (heteronomous regulation) are imposed “from outside” the autonomy of the parties, whose room for maneuver is very limited, except to improve working conditions.
2. CHARACTER OF THE EMPLOYMENT CONTRACT .- This contract is:
bilateral: generate obligations for both parties.
consideration: each party has a burden to the worker prestações. services; the employer to pay.
synallagmatic: each service is a prerequisite for their mutual.
commutative each party agrees to certain benefits.
of successive chain: its effects linger. And,
consensual: is perfected by mere consent of the parties.
Furthermore, analyzing the art 1 ET, we find the following notes:
a) Voluntariness .- The services owed by the contract are to be made voluntarily, as an expression of free nature of work, which is collecting the RHS of Labor.
b) Servicing .- It is the basic obligation of the worker and the contract work. The benefit is activity, not outcome, and must be paid personally by the worker.
c) Compensation .- The salary includes the employer’s contractual debt. If no payment, no contract.
d) alienation .- The services are provided by the work for the employer, who assumes “a priori” and original ownership of the fruits or results of work.
e) dependence or subordination .- For the ET, the worker provides services “in the field of organization and management” of the entrepreneur, which implies that one has to be within the governing and disciplinary circle it.
3. ESTABLISHING AND REGULATORY EFFECTS OF EMPLOYMENT CONTRACT. Both effects are given in this contract, the worker-employer agreement is the real contract, which simultaneously generates the legal relationship between the two sides work and regulated.
Civilregula C. While the expression of intent, governed by the principle of party autonomy, ET jca regulates the relationship born of such agreement, from its source to its extinction, regulation of the employment relationship is imposed “from outside” State or agreement, which the autonomy loses strength: Art 3.1
ET: “The dchos and duties regarding the employment relationship are regulated:
1, by the laws and regulations of the State;
2nd, by collective agreements, and (in the absence of both),
3rd, by the will of the parties expressed in the employment contract.
Furthermore, the parties can not establish, to the detriment of the worker, “less favorable terms or contrary to law or collective” (art3.1.c ET), which are reserved only to the employment contract, in its regulatory aspect of employment, improving working conditions and setmandatory in law and collective agreements.