Kiribati

In Kiribati, the Employment and Industrial Relations Code 2015 (EIRC 2015) governs employment agreements. These agreements come in various forms, each with its own set of rights and obligations for both employers and employees.

Contract of Employment

The Contract of Employment (CoE) is the most prevalent type of employment agreement in Kiribati. According to Section 75 of the EIRC 2015, employers must provide a written CoE to all employees and secure their signature on it. The CoE should explicitly state the terms and conditions of employment, which include:

• Job title and duties
• Remuneration (salary/wages) and benefits
• Working hours and leave entitlements
• Termination clause

The EIRC 2015 stresses that employees have the right to comprehend the contents of the CoE before signing. Employers are required to provide a copy of the signed CoE to the employee for their records.

Fixed-Term Contract

Fixed-Term Contracts (FTCs) are another form of employment agreement in Kiribati. These contracts specify a predetermined duration for the employment relationship, after which the contract automatically terminates. The EIRC 2015 does not have specific regulations regarding FTCs, but it implies their existence through provisions on termination.

Collective Agreement

The EIRC 2015 also acknowledges Collective Agreements between trade unions and employers or employer organizations (Section 67). These agreements establish terms and conditions of employment that apply to a group of employees, typically within a specific industry or organization.

While the EIRC 2015 provides a framework for these agreements, it doesn't dictate their content. Collective agreements can address various aspects of employment, including wages, working hours, dispute resolution mechanisms, and occupational health and safety standards.

The Employment and Industrial Relations Code 2015 (EIRC 2015) outlines essential elements for employment agreements in Kiribati.

Parties to the Agreement

The agreement should clearly identify the employer and employee. This includes the employer's legal name and business address, and the employee's full name and national identification number (if applicable).

Job Details

The agreement should define the employee's position within the organization, including the job title, a brief description of the duties and responsibilities, and the reporting hierarchy.

Remuneration and Benefits

The compensation package should be detailed, including base salary or wages, payment schedule, overtime pay rates (if applicable), allowances (if any), and details of any benefits offered.

Working Hours and Leave

The agreement should specify the standard working hours, including daily and weekly working hours, rest and break periods, and overtime expectations (if any). Leave entitlements should also be outlined, including annual leave, sick leave, maternity leave, and paternity leave (if offered by the employer).

Termination Clause

The agreement should outline the grounds for termination by both employer and employee, along with required notice periods. It should also address severance pay entitlements (if applicable) and procedures for disciplinary action.

Dispute Resolution

The agreement may include a clause outlining preferred methods for resolving any disagreements arising during employment. This could involve internal mechanisms or recourse to the Ministry of Employment and Human Resource Development (MEHRD).

This is not an exhaustive list, and additional clauses can be included based on specific needs. Consulting with a legal professional familiar with Kiribati labor laws is recommended to ensure a comprehensive and compliant employment agreement.

In Kiribati, the law does not explicitly mandate a probationary period within employment agreements. The Employment and Industrial Relations Code 2015 (EIRC 2015) does not mention probationary periods. However, this does not prevent employers from incorporating probationary periods into their Contracts of Employment (CoE).

Contractual Freedom

The EIRC 2015 emphasizes the importance of a written CoE signed by both parties (Section 75). This provides employers with the flexibility to include a probationary clause within the CoE, specifying the duration and purpose of the probation period.

National Conditions of Service (NCS)

The NCS, a document outlining employment regulations for government employees, does recognize the concept of "Employee on Probation". While not directly applicable to the private sector, it suggests that probationary periods might be a recognized practice in Kiribati.

In essence, the legality of probationary periods in Kiribati depends on their inclusion within a mutually agreed-upon CoE.

Key Points to Consider

• Transparency: The CoE should clearly define the probation period's duration, expectations for the employee during this time, and the process for evaluation.
• Fairness: The probation period should be a reasonable timeframe to assess the employee's suitability for the role.
• Termination During Probation: The CoE should outline the consequences of failing the probation period, including the employer's right to terminate the contract without the usual notice periods or severance pay requirements.

Alternatives to Probation Periods

Even without mandated probation periods, employers have options for evaluating new hires. They can utilize:

• Training period: A structured training program can assess the employee's ability to learn and perform the job duties.
• Initial performance reviews: Conducting regular performance reviews during the initial months allows for ongoing assessment and feedback.

The regulation of confidentiality and non-compete clauses within employment agreements in Kiribati presents a nuanced scenario. There's a lack of explicit provisions in the primary legislation, the Employment and Industrial Relations Code 2015 (EIRC 2015), regarding these specific clauses.

Confidentiality Clauses

• Potential Enforceability: While the EIRC 2015 is silent on confidentiality clauses, there's an argument for their potential enforceability based on the common law principle of breach of confidence. This principle protects confidential information disclosed during a relationship of trust, such as employer-employee.

• Reasonable Scope: For a confidentiality clause to be enforceable, the information it protects must be clearly defined and considered truly confidential (e.g., trade secrets, customer lists). Overly broad restrictions on an employee's ability to use general knowledge and skills acquired during employment might be challenged.

Non-Compete Clauses

• Limited Application: Kiribati's legal framework doesn't explicitly endorse non-compete clauses. These clauses restrict an employee's ability to work for a competitor after leaving the company.

• Potential Restraint of Trade: The EIRC 2015 promotes freedom of association. Non-compete clauses that significantly restrict an employee's ability to find new employment could be deemed an unreasonable restraint of trade and deemed unenforceable.

Employers seeking to implement confidentiality or non-compete clauses in Kiribati should exercise caution. Here's what's recommended:

• Focus on Confidentiality of Specific Information: Clearly define the confidential information protected by the clause and restrict it to legitimate business secrets.

• Reasonable Time Limits: If a non-compete clause is deemed enforceable, any restrictions on competing employment should be limited in duration (e.g., a few months) and geographic scope (e.g., specific region where the employer operates).

• Seek Legal Advice: Consulting with a lawyer well-versed in Kiribati labor law is crucial to ensure these clauses comply with the broader legal framework and are likely to be enforceable in court.