Essay, Duties of Employers
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Task:
Citing relevant provisions of UAE Labor Law and DIFC Employment Law, describe the duties of employers under both UAE Labor Law and DIFC employment Law.
Your analysis must include comparative analysis of relevant provisions of law and DIFC decided cases.
Instructions:
1. Your assignment must be thorough, include analysis and must reflect your understanding of the subject.
2. About 4000 words would be needed.
3. Use the research, referencing and writing conventions taught in your course on research methodology (OSCOLA).
4. The submission should have an introduction, main body and conclusion. Have a suitable title and sub-titles (if you feel necessary). All the aspects posed must be addressed in the essay, not as separate answers, but as a comprehensive whole.
5. Include a cover-sheet while submitting the assignment.
6. Ensure that your essay achieves the Course Learning Outcomes shown in Page 2
Additional sources: You are required to use additional & suitable sources, cases and examples to support the arguments or reasoning that you adduce.
This instrument assesses the following Course Learning Outcomes (CLO):
Tick Course Learning Outcomes (CLO)* Marks
□ Describe the UAE legislation on labour law, HR law and worker safeguards 15
Quote UAE labour law 15
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Total 30
Duties of Employers
Introduction
Over the years, the UAE has been working on improving the employment standards and safety of the employees in the workplace. It is because UAE has been accused of violating the rights and privileges of workers by failing to protect them from unethical employers. To understand the duties of the employers, the discussion will evaluate the provisions of UAE labor law and DIFC employment law that details the rights of the employees and employers. The comparison of these two labor legal frameworks will help to understand the responsibilities of the employers in relation to protecting the employees’ rights. The employees working in the numerous free zones in the UAE are usually subject to comprehensive labor law and employment regulations created in the respective free zones. When labor regulations are inconsistent with the UAE labor law, the provisions of labor law become a priority. Therefore, the research evaluates the use of the UAE labor law and DIFC employment law to determine the duties of the employers.
Background to UAE Labor Law and DIFC Employment Law
The UAE labor law and the DIFC employment law is applicable to nationals working in domestically and it only applies to those working abroad when it was included in the contracts between the patties. However, the laws from other areas could restrict the application of the non-local laws accepted among the parties. Under the labor law, any form of the employment disputes would only be determined by the labor courts in UAE. Generally, “an employer has the duty of ensuring as far as possible and practicable the health, welfare and safety of the employees at work.” An employer should create and maintain a safe and harassment free workplace that poses no risk to the employee’s health.
The DIFC Employment Law under Article 40, states that every employer has a duty to ensure effective systems are put in place to minimize the health risks regarding fire and the use, handling and storage of dangerous substances. Every Employer should provide information, training instruction and supervision to all employees in English or a language all employees can understand, in ensuring health and safety of the employees at work. The employee has a duty of informing the employees through a detailed explanation of the dangers and hazards of the employment and the necessary protective measures. In addition, under article 40, the employer should provide and maintain safe and adequate access to, and from the workplace. Moreover, under article 40 of DIFC employment law, an employer has the duty of ensuring an enclosed workplace is adequately ventilated with sufficient fresh air or purified air. The temperature of indoor workplace should be kept at reasonable degrees during the working hours in the workplace buildings. The employer has the duty of ensuring suitable and proper lighting in and around the workplace.
For ethical and health considerations, the employer should also ascertain that the workplace, its furniture, furnishings and fittings are clean. The employer is required to ensure that every room where work is done by employees has adequate floor area, height and free space for health and safety considerations for the welfare of the employees. The employer also must ensure proper and adequate sanitary conveniences are available and adequate supply of clean drinking water for all employees at the workplace. Under article 53 of the DIFC Employment law, the employer is mandated to obtain and maintain a health insurance cover for each and every employee as required by the regulations.
The UAE labor Law is stated under Federal Law No. 8 of 1980 of the UAE and sets out al employment regulations. Under the UAE labor law, the employer has specified duties and minimum obligations. The employers must give their employees paid leave that is not less than two calendar days per month for an employee working more than six months but less a year and thirty calendar days per year for employees working more than a year. The leave must include the seven national holidays. However, if the public holiday falls on a weekend, the employers are not obliged to add a day off as compensation. Additionally, health insurance obligation for employers updated and effected on 30 June 2016, requires all employers to provide medical insurance to all their employees. The employer has a duty to pay overtime to employees has given by regulations. The overtime payment amounts to 125% of an employee’s normal enumeration for the overtime period worked. Overtime must not exceed two hours per day unless in a case where the work is necessary to prevent substantial loss or serious accident.
In the UAE, the employment relationships are defined by Federal Law No. 8 of 1980 that is known as UAE labor Law that guides the employment regulations and provisions that applies to the employees working in the UAE including foreign persons. However, the UAE labor excepts the civil servants, domestic servants, and security officers. When an employee operates within a DIFC area, the DIFC Employment law applies. The difference between the UAE labor Law and DIFC provisions is that DIFC provisions only applies to the free zone areas. In terms of employment contracts, there is no mandatory law that applies to them. The employment contracts in the UAE are stipulated by the contract law. The contracts might be short-term or unlimited contract terms.
In comparison to UAE labor law, under DIFC employment law, the employers have given some comprehensive duties and responsibilities to their employees and improving the safety standards in the workplace. The new DIFC law No.6 of 2018 was pushed by DIFC’s authority’s paper that sought to improve the employment status in the United Arab Emirates. The DIFC law was to apply to temporary and part-time workers and persons who have been deemed to have strong connection to the DIFC for it to be applied in the right way. Even though DIFC law details the responsibilities of the employees, it gives more emphasize on how employers to should treat and respect the employees. The disadvantage of labor law is that it does not provide for a minimum wage for the employees. Advanced countries have created employment laws and regulations that have created a minimum wage level. However, both DIFC and labor law have failed to pass a guideline and provision for the minimum wage rate for the employees. In addition, the labor law does not provide for the summary dismissal of terminating employees without proper notice.
Based on the employment law, the employer is allowed to dismiss the employee for an immediate cause whereby the cause of the employee demands termination and whereby the reasonable employer would have terminated the employees based on Article 59(A). The employers and employees gain some advantages from the labor law. For instance, organizations are allowed 14 days to ensure the payment of all wages owed to the employee after their termination. The law also demands that the employer should offer health insurance of the employees unlike paying for their health and disability loss of earnings. The law also gives employers the advantage on the ability to dismiss an employee takes more sick leave days than allowed. In contrast, the employees are able to enjoy health insurance, gratuity, and maternity leave. In determining the responsibilities of the employers, there are emerges question on whether DFIC is a distinct employment legal framework. The discrimination provision in DFIC is the main core issue that differentiates it from the labor law.
The Application of DIFC Employment Law
One of the key provisions of DIFC law is on late payment of wages and salaries. DIFC law demands that the employers should pay their employees on time and on schedule. Late payments would trigger penalties for employee remuneration. The penalty was capped for up to 6 months’ wages. The penalties might be lowered to removed when the court considers the penalty unreasonable because of ongoing court dispute and the employer could prove that the employees are the causes of delays in wage payments. In addition, the provision demands that the employer should give the employees family benefits. For example, the male employees who have worked for a longer period in the organization should be given 5 working days as paid paternity leave. They should be given time to attend to all ante-natal care appointments that is allowed for expectant fathers.
The DIFC provisions also passed guidelines to expand the anti-discrimination provisions. The new provisions stated that no employees should discriminated on the base of his age, pregnancy, beliefs or maternity. Unjustified practices that has disproportionate impact on the employees based on protected characteristics were also made illegal. Other unacceptable discrimination practices that employers were expected to avoid includes unwanted treatment of the employees such as creating a hostile, degrading, and offensive workplace that undermines the rights and dignity of the employees. “The employers should not victimize any employee who helps another employee to raise claims of discrimination.” The employer should allow employees who feel discriminated upon to file any claims of discrimination in the workplace. As such, it is the sole duty of the employer to ensure that the workplace is safe and free from any forms of discrimination for all employees.
The employer should also be aware of their potential liability in case of any issue relating to their employees. Article 51(2) states that an employer is usually liable for anything happening to the employee during the employment period. DIFC employment law demands for the provision of fair and efficient procedures to dealing with disputes that emerges from the interpretation of the employment law. The labor regime is keen on promoting fair treatment of the employers and the employees to make the relationship and condition between the employer and the employee smooth. It is clear that DIFC employment law is one of the key aspects for the overall improvement of DIFC as it creates good relationship between the employee and the employer. The DIFC draft of the employment legal framework is keen on improving the international standards for implementing the employment law.
Changes to the law comprises of a strategic approach to improve labor standards and making them more compatible to the international standards. However, it is not right to follow the ILO rules and procedures. The ILO is created with the focus on expanding the international labor standards agreed amongst the various member states including United Arab Emirates. As such, the ILO demands that the employer should provide improved working conditions as well as the right for the employee to collective bargaining. The employers in UAE will bear the burden to ensure that the working conditions are improved to accommodate the employees effectively. It is also important to allow the employees to negotiate their working terms and conditions through the collective bargaining process.
The employer should also provide a clear procedure and mechanism that employees could use to request information from the employer relating to possible discrimination against them. However, the employee should provide the claim of discrimination within six months of the date when the discriminator act occurred. The courts in UAE have the authority and power to address all the forms of discrimination. Under the new DIFCA employment law, the employer could enter into settlement agreement with the employees giving them rights to push the employees to waive their rights and privileges. However, the courts might exert their discretion on any unreasonable circumstances and situations. The employers cannot victimize any person who decides to become a whistleblower in good faith. The DIFC provisions protects any employees who makes disclosure of information on the company in good faith. The protections would protect the employees from civil liability and being a dismissedor that is reasonable to cause limitation to that individual.
Comparative Analysis of the DIFC and the UAE Labor Law
The employers will depend on both the DIFC and the UAE labor law to understand how to manage the employees in the workplace. The employers are expected to follow the relevant probation guidelines and rules. According to the UAE labor law, Article 3, “the employer can put an employee under probation under, which the period must not exceed six months and the services of the employees must be terminated without notice or any pay.” While, the DIFC Employment Law, Article 57 claims that the employer should issue a notice to the employees before terminating the employee’s employment. Under the DIFC Employment law, the employee must resign or employment terminated by employer upon a one-week notice for a worker working between one and three months. Also, the UAE labor law allows for resignation or termination of employment contract without notice while the DIFC employment law requires a notice with specified notice periods for different working times or contract periods.
The employer also has a responsibility to ensure the workers do not work too long hours than the legal working hours. UAE labor law, Article 65 states that the maximum normal working hours for adult workers is 8 hours per day and 48 hours for a week. The hours may increase to nine for commercial establishments, cafes and hotels. The day’s normal working hours should be reduced by two during the month of Ramadan. In contrast, DIFC Employment Law, Article 19 argues that the working time for an employee shall not be more than forty-eight hours for seven-day period unless the employer has obtained a written consent from the employee. The DIFC has no exception for the hotels, commercial establishments and cafes. In the DIFC allows reduced working hours during Ramadan but for only fasting persons only.
In reference to overtime, the UAE labor law, “article 68 states that under allowed working circumstances, a worker may work overtime between 9 a.m. and 4 a.m” . and an entitlement to remuneration for the normal working hours plus a supplement of at least 50 percent of the remuneration. Under article 60(2) of DIFC employment law, it requires that gratuity should not include overtime payment. While, the UAE Labor Law specifies the overtime and gives regulations while DIFC Employment law provide not attention to overtime. The UAE Labor Law is therefore more advantageous to the employee.
“The UAE employment and labor law also provides for weekly rest day for the employees” There is a requirement for a weekly rest day, but the DIFC does not specify the day of the week which allows flexibility for coordination with other countries with weekly rest day on Sunday. In terms of limited and unlimited employment contracts, UAE labor law, Article 38 states that an employment contract maybe unlimited or limited period contract. On the other hand, DIFC employment law states that there is no distinction between the two kinds of contracts. Under the UAE labor law there is restriction on both the employer and the employee. The DIFC does not distinguish between the unlimited and limited contract.
During public holidays, the employers are expected to be given the worker full pay and break. The UAE labor law, article 74 states that every worker would be allowed to stay home with full pay including New Year’s Day, Feast of Lesser, and National Day among others. The UAE labor law, article 81 explains that when the situation requires that the employee should work during the rest days or public holidays, the employees would be entitled to full pay. The employers shall provide compensatory leave during such days that matches with 50% of his remuneration. Article 30(1) of DIFC employment law states that the employee is allowed to attend the national holidays in the UAE within the public sector. Article 30(4) states that leave that is allowed to the employee might be replaced when the employer agrees payment with the employee and the agreement is in writing. Both laws give all employees entitlement to all UAE holidays. However, DIFC employment law gives the employees an option to accept compensation and payment for working during such days.
The employer has a duty to give the employees an annual leave. UAE labor law, article 75 states that every employee will be given an annual leave of not less than 1 month. Article 77 of the UAE labor law explains that holidays provided by law within the annual year. In contrast, “Article 25 of the DIFC employment law explains that the employer will provide an annual vacation of 20 working days that accrues for employees who have been hired for not less than 3 months.” The employer should allow the employee to take an annual vacation in minimal periods of one or more weeks. The DIFC law is better for respecting the rights of the employees than the UAE labor law because the leave days accrues on a pro-rate basis after 3 months of employment law. To persons who needs flexibility, the employee should be given working days off. The annual leave is computed as part of the national holidays.
In terms of sick leave, UAE labor law, article 83 stats that the employees are not entitled to paid sick leave within the probation duration. When the employee completes the probation period of three months, “he or she would be allowed to take a sick leave of not more than 90 days. The leave would be computed through the first 15 days, the next 30 half days, and other days without payment.” In contrast, article 33 of DIFC law demands that the employee should offer sick pay during the normal weekly rate. DIFC employment law, article 34 states that there is a maximum yearly sick leave entitlement is only 90 days. Sick leave of 90 days is allowed for both UAE labor law and the DFIC employment provisions. The employer should give the employees a termination notice before firing them.
Article 113 of the UAE labor law states that the employment contract could be terminated upon the expiry of the contract period unless the contract is expanded under the provisions of the employment contract. Article 115 demands that when the employment contract period is short, the employer can only terminate the contract for reasons listed in article 120 of the labor law. In contrast, article 57 of the DIFC employment law demands that a notice should be issued to the employees before terminating the employment whereby a person has been hired for one month or more. Under the labor Law in UAE, an employer must pay an employee for three months’ salary if they seek to terminate their limited contract. On the other hand, DIFC employment law explains that there is no significant period required for the long-term employees. As such, the termination notice act as a way of protecting the employees by giving them job security and the employer would get time to get and train appropriate replacement for the position.
The compensation in lieu of termination notice is important and all employers should give employees compensation when they do not provide notice to the employees. According to article 119 of the UAE labor law, the compensation of the employees will be equal to the salary of the employee for the duration of the notice period of the termination period . Compensation in lieu of the termination notice will be computed based on the past received remuneration. Under DICF employment regulation, there is no requirement on the payment that should be made to the employees terminated without notice. UAE labor law is clearer than DICF provisions in explaining the approach of computing compensation to the employees who have been terminated.
Moreover, the employer is expected to exercise some caution when dismissing employees for misconduct. Article 120 of the UAE labor law gives reasons for, which the employer might dismiss the employees. They include when the employees adopt false identity, when the employee is on probation, when the employee makes substantial error that could leads to significant loss to the employee, when the employee fails to follow instructions, more so about industry safety standards and safety condition in the workplace, when the employee do not perform fundamental duties under the employment contract, and when the employee assaults the employer. On the other hand, “article 60(4) of DICF employment law states that the employee would not claim any gratuity payment when they are terminated for misbehavior.” In comparison, the UAE labor law details the specific conditions that an employee might be terminate without prior notice. In contrast, the DICF employment law is broader and does not specific what can be classified as misbehavior. UAE labor law is clearer and thus, it should be used by the employer before terminating the employees.
The employer also demands that the confidential information of the organization should remain private and confidential. When an employee exposes the confidential information of the employer including business secrets, they can be terminated without any notice. Article 127 of the UAE labor law demands that the employer might terminate the contract of the employees without any legal jeopardy. On the other hand, DIFC law explains that there is no such legal provision within the DIFC employment provisions. DICF employment law is recommendable than the UAE labor law as it leaves room on the issue for the employee to determine whether is an obligation not to engage in competition within the employer. However, it does not restrict the employer from including a non-compete clause into the employment contract and the UAE labor law indicates the parameters for placing obligations on the employees.
Conclusion
In summary, the UAE Labor Law provided by the federal law No. 8 is more advantageous to the employers and employees. It provides vivid understanding of the regulations and restrict the freedom of employment contract, which would otherwise allow the employer to exploit the employees. The UAE Labor defines overtime payment clearly and stipulates the fixed minimum notice periods and the maximum working hours with exception for managerial level staff. On the other hand, the DIFC Employment does not specify on many key areas as fixed rates and periods. The DIFC Employment Law does not give a difference to the unlimited and limited contracts. The employer has various duties as explained by the regulations and guidelines of DIFC employment law. From an employee’s perspective, they will enjoy 90 days of sick leave that are paid fully by the employer. From an employer’s perspective, the advantages are that Ramandan hours would only apply for persons who are fasting. Moreover, DFIC employment provisions do not specific the days of the week that should be given as rest days that is beneficial to the companies to coordinate with the working days of the Western nations. Therefore, the assessment of the duties of the employers is useful and it is explained fully by the UAE labor law and guidelines from the DIFC employment law.
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