In Tuvalu, the Labour and Employment Relations Act 2017 (LERA) outlines the main types of employment agreements. These agreements vary based on factors such as work duration and payment structure.

Fixed-Term Contracts

Fixed-term contracts specify a predetermined employment period. The maximum duration for such a contract is stipulated in the Employment Act.

Casual Employment Contracts

Casual employees are those whose contracts specify short-term, irregular work. LERA identifies casual employees as one category under the broader definition of "capacity" for employment purposes.

Piece-Work Contracts

Piece-work contracts involve payment based on the quantity of work completed rather than set working hours. LERA includes piece-work employees within its scope.

Task-Based Contracts

Task-based contracts are similar to fixed-term contracts but focus on the completion of a specific task rather than a set time period. LERA mentions task-based employees alongside other employment categories.

Employment Contracts for More Than 90 Days

The Employment Act mandates that employment contracts exceeding 90 days must be documented in writing. This written agreement must be signed by both the employer and employee and witnessed by the Commissioner of Labour.

An employment agreement in Tuvalu, while not bound by a rigid format, should include specific clauses to ensure clarity and avoid potential disputes.

Parties to the Agreement

This section identifies the employer and employee entering into the agreement. It should include their full names and contact details for clear communication.

Commencement of Employment and Term

This clause specifies the start date of employment and the type of contract. If it's a fixed-term contract, the end date or the maximum duration should be mentioned.

Job Description and Duties

A clear outline of the employee's job title, duties, and responsibilities is essential. This provides a benchmark for performance evaluation and avoids misunderstandings.

Remuneration and Benefits

This section details the employee's salary structure, including basic pay, allowances, overtime rates, and payment methods. It should also outline any benefits offered, such as health insurance, leave entitlements, and pension contributions.

Working Hours and Leave

This clause specifies the standard working hours, including breaks, and the process for requesting leave.

Termination Clause

This section should outline the grounds and procedures for termination by either party, including notice periods.

Confidentiality Clause

If the role requires handling sensitive information, a confidentiality clause protecting the employer's confidential information can be included.

Dispute Resolution

This clause establishes the process for resolving any disagreements arising from the employment relationship. It can outline steps for internal mediation or referring the matter to the Ministry of Labour for intervention.

Governing Law

This clause specifies the legal jurisdiction applicable to the interpretation and enforcement of the agreement. In Tuvalu, employment contracts would be governed by Tuvaluan labour laws.

In Tuvalu, the Labour and Employment Relations Act (LERA) 2017 doesn't explicitly mention probationary periods in employment agreements. However, including a probationary clause can be beneficial for both employers and employees during the initial phase of employment.

Purpose of a Probationary Period

A probationary period allows employers in Tuvalu to assess an employee's suitability for the role based on factors like skills, performance, and work ethic. LERA emphasizes an employee's capacity to perform duties, and a probationary period can aid in this evaluation. It also gives employees a chance to experience the work environment, determine if the role aligns with their expectations, and assess their fit within the company culture.

Probationary Period Duration

There's no legal requirement in Tuvalu regarding the maximum or minimum duration of a probationary period. However, a reasonable timeframe is recommended to ensure a fair assessment for both parties. Common probationary periods range from 3 to 6 months. Determining the appropriate timeframe can depend on factors like the job complexity and required skillset.

Expectations During Probation

A well-defined probationary clause should outline the expectations for both the employer and employee during this initial period. For employers, this might include setting clear performance goals and providing adequate supervision and training. Employees can be informed about the evaluation process and receive feedback on their performance.

Termination During Probation

The probationary clause should specify the termination process during this initial period. Generally, less stringent notice periods apply compared to confirmed employment. Following the principles of fairness outlined in LERA is recommended throughout the probationary period.

Confirmation of Employment

Upon successful completion of the probationary period, the employee typically transitions into confirmed employment, with full benefits and entitlements as outlined in the employment agreement.

It's recommended to consult with a legal professional when drafting a probationary clause to ensure compliance with Tuvalu's labour laws and tailor it to the specific employment scenario.

Confidentiality and non-compete clauses are not explicitly regulated by the Labour and Employment Relations Act (LERA) 2017 in Tuvalu. However, employers can include these clauses in employment agreements to protect their legitimate business interests, while ensuring adherence to broader legal principles.

Confidentiality Clauses

Confidentiality clauses aim to protect an employer's confidential information, such as trade secrets, client lists, or proprietary data. These clauses are particularly relevant in sectors dealing with sensitive information, like finance or technology.

When drafting a confidentiality clause in Tuvalu, it's crucial to strike a balance between protecting legitimate business interests and avoiding unreasonable restrictions on the employee's ability to work in their field. The clause should:

• Clearly define what constitutes confidential information.
• Specify the duration for which confidentiality obligations apply (even after employment ends).
• Outline permissible uses of confidential information by the employee.

Referencing the common law principle of "implied duty of confidentiality" can further strengthen a confidentiality clause. This principle suggests that employees have a duty to protect their employer's confidential information in the absence of an explicit contract clause.

Non-Compete Clauses

Non-compete clauses aim to restrict an employee's ability to work for a competitor or start their own competing business for a certain period after leaving the company.

LERA's emphasis on fair treatment for employees makes unreasonably broad non-compete clauses potentially unenforceable in Tuvalu. These clauses could be deemed an unfair restriction on an employee's right to work.

Therefore, non-compete clauses in Tuvalu should be narrowly tailored to protect only the employer's legitimate business interests. Considerable factors include:

• The seniority of the employee's position and access to sensitive information.
• The nature of the employer's business and its competitive landscape.
• The geographical scope of the restriction.
• The duration of the non-compete period (generally shorter periods are more enforceable).