Samoa

In Samoa, the working relationship between employers and employees is defined by various types of agreements, governed by the Labour and Employment Relations Act 2013 (LERA). Here's a breakdown of the common types:

Individual Employment Agreement (IEA)

An Individual Employment Agreement (IEA) is a standard agreement that outlines the terms and conditions of employment between an employer and an employee. This agreement complies with LERA and details aspects such as the parties involved, job duties and responsibilities, remuneration, working hours, and leave entitlements. The LERA mandates that written contracts can be drafted in either Samoan or English, as chosen by the employee. Three copies of the agreement must be signed, with one each for the employer, employee, and the Ministry of Commerce, Industry and Labour (MCIL).

Fixed-Term or Specific-Purpose Contracts

Fixed-Term or Specific-Purpose Contracts are suitable for temporary positions or projects with a predetermined timeframe. The LERA doesn't explicitly define a maximum duration for fixed-term contracts; however, it emphasizes that renewals should be exceptional.

Part-Time Employment Contracts

Part-time employment is recognized under LERA. These agreements typically specify the number of hours worked per week and may have benefits and entitlements pro-rated compared to full-time employees.

Additional Considerations

While these are the main types of employment agreements, Samoan labor law also acknowledges Collective Bargaining Agreements. These agreements are negotiated between trade unions and employers, outlining terms and conditions for a group of employees within a specific industry or organization.

An employment agreement in Samoa should clearly define the expectations and obligations of both the employer and employee to prevent future misunderstandings and disputes.

Basic Information

The agreement should clearly identify the employer and employee by name and title. It should specify the official start date of employment and outline the employee's job title along with a brief description of their primary duties and responsibilities.

Remuneration and Benefits

The agreement should state the agreed-upon monthly or annual salary amount and currency. It should specify the frequency of salary payments and outline any additional benefits offered, such as health insurance, allowances, or paid leave entitlements.

Leave and Entitlements

The agreement should specify the annual leave entitlement according to the Employment Relations Act or as agreed between the parties. It should outline the company's sick leave policy, including eligibility and entitlement duration. It should enumerate the recognized public holidays with details on pay during these days and include any additional leave provisions, such as maternity leave or compassionate leave, if applicable.

Termination

The agreement should outline the grounds for termination by either party, following the principles of fairness and good faith as highlighted in the Employment Relations Act. It should specify the required notice period for termination by the employer or employee and detail the terms for severance pay in the event of termination, if applicable.

Confidentiality and Intellectual Property

The agreement should include a clause outlining the employee's obligation to keep confidential any employer's sensitive information. It should specify ownership rights over any intellectual property created by the employee during their employment, adhering to relevant Samoan intellectual property laws.

Dispute Resolution

The agreement should establish a clear process for addressing any workplace grievances or disputes.

Probationary periods are a common feature in employment agreements in Samoa. They provide an opportunity for employers to assess an employee's suitability for the role before confirming them permanently.

Duration of Probation

In Samoa, the generally accepted probationary period is three months. This duration provides sufficient time for both the employer and employee to evaluate the fit.

Legal Framework

The Labour and Employment Relations Act 2013 (LERA 2013) forms the legal framework for employment contracts in Samoa. While the Act itself doesn't explicitly mention probationary periods, it does address aspects like contracts of service and termination.

Key Points to Consider

• Contractual Terms: The specific details of the probationary period, including its duration and expectations, should be clearly outlined in the employment contract.
• Employer Evaluation: Employers should utilize the probationary period to assess the employee's skills, performance, and adherence to company policies.
• Employee Rights: Employees also have the right to assess the job role, company culture, and suitability during the probation period.

Termination During Probation

Both employers and employees can terminate the employment relationship during the probation period with a shorter notice period compared to confirmed employees.

Confidentiality clauses are a staple in Samoan employment agreements, designed to safeguard an employer's confidential information. This information can encompass trade secrets, customer lists, and business strategies.

Key Aspects of Confidentiality Clauses

• Protection of Confidential Information: The clause should delineate what is considered confidential information. This can be a broad definition or focus on specific types of information.
• Employee Obligations: The clause should detail the employee's responsibilities regarding confidential information. This typically includes maintaining its confidentiality, using it solely for job-related purposes, and not disclosing it to unauthorized individuals.
• Duration of Confidentiality: The clause should indicate the period for which the confidentiality obligation is applicable. This can extend beyond the termination of employment for a reasonable duration.

Legal Considerations

Samoan courts are likely to uphold confidentiality clauses as long as they are reasonable and do not unduly restrict an employee's ability to work in their field. The clause should not prevent an employee from utilizing their general skills and knowledge acquired during their employment.

Non-compete clauses, which limit an employee's ability to work for a competitor or start a competing business after leaving the company, are less prevalent in Samoa compared to confidentiality clauses.

Enforceability of Non-Compete Clauses

The enforceability of non-compete clauses in Samoa is uncertain due to the absence of specific legislation addressing them, and relevant case law is scarce. However, some guidance can be inferred from general contract principles:

• Reasonableness: Similar to confidentiality clauses, non-compete clauses must be reasonable. This includes limitations on:
  • Geographic Scope: The clause should restrict competition within a reasonable geographic area relevant to the employer's business.
  • Duration: The restriction should only apply for a reasonable period after termination, typically a few months.
  • Scope of Activity: The clause should only restrict competition in activities that directly compete with the employer's business.

Potential Approach by Samoan Courts

Drawing from common law principles applied in other jurisdictions, Samoan courts might consider the following factors when assessing a non-compete clause:

• Employee's Position: Senior employees with access to more sensitive information may be subject to reasonable non-compete clauses.
• Nature of the Employer's Business: Employers in industries with highly specialized knowledge might have a stronger case for enforcing non-compete clauses.