mercredi 14 avril 2010

Moroccan Labor Law


A. General

Labour Issues are governed by Law n° 65-99 promulgated by dahir 1-03-194 of 11 September 2003 (hereafter, “Moroccan Labour Code” or “MLC”) as well as its various application decrees.

Article 9 of the Moroccan Labour Code prohibits discrimination based on race, colour, gender, handicap, marital situation, religion, political opinion, union participation, national origin, social origin for any employment matters notably hiring, distribution of work, training, salary, promotion, granting of benefits, disciplinary measures and termination.

B. Hiring

The Moroccan Labour Code allows for the conclusion of three types of contracts: an undetermined period contract, a determined period contract or a contract for a determined scope of work.

It is important to note that temporary contracts no longer exist under Moroccan Law and determined period contracts may only be concluded in the following cases:

Ø Replacement of one employee with another in case the employee’s contract is suspended

Ø If the company is facing a temporary increase in its activity

Ø If the work is of a seasonal nature

The determined period contract can also be concluded at the time of the initial opening of the company or the opening of a new department in the company or at the introduction of a new product in the market. In these cases the duration of the contract is one year renewable one time after which the contract becomes an undetermined period contract.

In case none of the above applies, then the contract must be concluded for an undetermined period.

Concerning the legal form of the contract, you may note that while a written contract is not required, if a written contract is concluded then it must be made in two original copies signed and legalized by both the employee and the employer.

Also, in the absence of a written work contract, the employee is treated as having an undetermined period contract.

Article 19 of the MLC states that in case of a change in the legal structure of the company (merger, sale, privatisation…) all contracts remain valid between the employee and the new employer.

The contract should establish a trial period which is the period during which each party can voluntarily terminate the contract at any time without giving notice or paying an indemnity. After one week of service, however, either party must give at least an 8 days notice. For an undetermined period contract, the legally prescribed trial periods are as follows:

Ø 3 months for management staff;

Ø 1,5 months for employees; and

Ø 15 days for workers

The trial period can be renewed one time.

For determined period contracts, the trial period must not exceed one day per week worked with a cap of 2 weeks for contracts with a duration of less than 6 months. The trial period must not exceed 1 month for contracts with a duration greater than 6 months.

If, after the expiration of the trial period, the employee is dismissed without having committed a serious offence, the notice period must not be less than those prescribed by law, as follows:

Management

< service =" 1" style="mso-spacerun:yes">

1- 5 years of Service = 2 months

> 5 years of Service = 3 months

Non Management

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1- 5 years of Service = 1 month

> 5 years of Service = 2 months

As for determined period contracts, in case of termination of contract prior to the end of the contract period for reasons other than serious offence, the damages to be paid are equal to the remainder of the salary to be paid through the end of the contract period.

B.i. Hiring Foreigners

Foreigners may be hired in the same manner as local recruits, with the exception that they are required to have their labour contract approved by the Ministry of Employment. Recent practice has changed such that employers are now required to justify the hiring of a foreigner rather than a local individual.

All foreigners residing in Morocco for more than 90 days are required to obtain a resident card (carte de séjour).

B.ii Hiring Women and Children

The age of majority in Morocco is 18. Children may not be employed before the age of 15 years and children under the age of 16 may not be required to work at night. An exception to this may be made upon the approval of the labour inspector. For purposes of the labour code, "night" is defined as 9pm to 6am in non-agricultural sectors.

Likewise, women may only work at night if their health and social situation permit them to do so. Companies may be required to put special conditions in place to accommodate women working at night (i.e. nightime transportation).

You may note that certain types of work are not allowed to be performed by women, children and disabled individuals such as quarry work, subterranean work, and hazardous work and, for children and disabled, work that will stunt growth or exacerbate a disability.

C. Work Hours

The standard work hours are 44 hours per week or 2288 hours per year. These hours may be divided by the company according to business needs provided that the work day does not exceed 10 hours. Also, all employees must be given a weekly day of rest of at least 24 hours which, except under specific situations, must be granted on Friday, Saturday, or Sunday (or the day the market is open.)

Overtime is paid for any hours worked in excess of the standard work week. It is paid as a 25% premium increase if the extra hours are worked between 6 am and 9 pm. A 50% premium is applied if this overtime occurs on the weekly day off (even if another day off is given as compensation).

If the hours occur between 9 pm and 6 am a 50% premium is applied. A 100% premium is applied if the overtime occurs on the weekly day off (even if another day off is given as compensation)

D. Compensation

All employees must be paid at least the minimum wage which is 10,64 dirhams per hour effective July 1, 2009.

Furthermore, employees are eligible for service premiums added to their salaries according to the following schedule:

Ø 5% of the salary after 2 years of service

Ø 10% of the salary after 5 years of service

Ø 15% of the salary after 12 years of service

Ø 20% of the salary after 20 years of service

Ø 25% of the salary after 25 years of service

E. Absences

E.i. Annual Leave

An employee is entitled to a vacation after continuous service in a company for at least 6 months.

The vacation is calculated based on 1,5 days for every month worked, (i.e. 18 days a year as a start). An employee is allowed an additional 1,5 days for every 5 years of service up to a maximum of 30 business days.

E.ii. Sick Leave

An employee who needs to take sick time is required to advise his employer within 48 hours of his absence. He also needs to justify his absence with a medical certificate if the absence lasts for a period greater than 4 days.

In case an employee is absent for medical reasons (other than for a work-related illness or injury) for more than 180 consecutive days in a 365 day period, his employer can assume he has resigned.

E.iii. Holidays

In general, employers may not cause their employees to work on a public paid holiday. However, based on the type of business, there are some exceptions to this.

As per decree, the holidays are as follows:

Ø January 11 (Manifestation de l'Indépendence)

Ø May 1 (Jour du Travail)

Ø July 30 (Fête du Trône)

Ø August 14 (Oued Eddahab)

Ø August 20 (Révolution du Roi et du Peuple)

Ø August 21 (Fête de la Jeunesse)

Ø November 6 (Fête de la Marche Verte)

Ø November 18 (Fête de l'indépendence)

Ø Aid el Ftr

Ø Aid El Adha

Ø 1er Moharrem

Ø Aid El Maoulid Annabaoui.

E.iv. Other Absences

E.iv.a. Maternity

A female employee has 14 weeks for maternity which may be taken after delivery or in increments of 7 weeks before and 7 weeks after delivery. The employee has the right to take an additional period not to exceed 90 days beginning after the 14 weeks of Maternity leave have passed. Also, with the agreement of her employer, a woman may take up to and additional 1 year of unpaid maternity leave.

E.iv.b. Paternity

A male employee may take 3 days for paternity leave.

E.iv.c. Bereavement

An employee may take 3 days for the bereavement of a spouse, child, grand-child or ascendant of the employee. This leave is 2 days for bereavement of a sibling or spouse’s sibling or ascendant.

E.iv.d. Marriage

An employee may take 4 days for his/her marriage. In case of the marriage of a close relative of the employee this leave is 2 days.

E.iv.e. Other Absences

Employees may take time off to attend a board or assembly meeting of political councils and/or related commissions of which he/she is a member.

Surgery of a child or spouse: 2 days.

F. Safety and Hygiene

The Labour Code stipulates that employers must provide work areas that are safe and clean. Also, companies employing at least 50 employees are required to establish a Security and Hygiene committee. This committee consists of:

· a president, either the employer or its representative,

· the head of the safety department or if not available, an engineer or technical manager working in and designated by the employer

· the labour doctor

· two employee delegates elected by the employee delegates

· one or two union representatives, if applicable.

The responsibility of the committee is, among others to:

· to detect professional risks to which employees are exposed

· to ensure compliance with safety and hygiene regulations and legislation

· to ensure that the employees correctly use and maintain the personal protection devices

· to ensure awareness of environmental protection inside and around the company locations

The committee meets once per trimester, at other times as necessary.

The labour code also specifies other obligations that Committee must fulfil i.e. annual reporting.

Furthermore, article 304 of the Labour Code stipulates that any company employing at least 50 employees must establish a labour medical service. Companies to which this applies must have an occupational physician (called a "médecin du travail") present at all times during the work day. The governmental labour authority determines the minimum time a doctor must dedicate to employees based on the level of danger within the company. The doctor must have a specialized diploma for this type of work medicine and must have a labour contract with the employer.

The company must also have state certified nurses on a full time basis.

The doctor’s responsibilities include:

Ø Pre-employment medical exams, preventing any employee health problems by controlling hygiene conditions, and monitoring the risks of contamination

Ø Providing medical care in the case of an emergency, work accident or illness

Ø Advising on hygienic conditions, protection of employees from work-related accidents, amelioration of work conditions

Medical exams should be conducted:

Ø prior to hiring, or at least prior to the end of the trial period

Ø for employees over 18 years old once per year

Ø for employees under 18 years of age, once every 6 months

Ø for employees exposed to any danger, pregnant women, etc

Ø after a period of absence resulting from a work-related accident or illness

G. Internal Policies

Articles 138, 139 and 140 of the Labour Code specify that companies employing more than 10 employees are required to establish internal policies within 2 years of opening the business, after having communicated them to the employee delegates and labour union representatives. They are also required to submit the policies to local labour authorities.

Apart from the legal aspects, it is also of interest to have internal policies so that any specific provisions that an employer would like to apply to his employees will be clearly communicated and employees cannot claim that they were not aware of the said provisions.

Notably, the provisions that should be included in the internal policies are described by the Labour Code and include:

· General provisions of hiring employees, dismissal, leave and absences

· Specific provisions relative to the work organization, disciplinary measures, and the protection of the health and safety of employees

· The provisions relative to the organization of the adaptation of handicapped employees following a work-related accident or illness

H. Employee Delegates

Pursuant to the provisions of the Labour Code relating to employee delegates, employee delegates must be elected in all companies normally employing at least 10 permanent employees.

Article 433 specifies the number of delegates to be elected which varies based on the number of employees in the company, and the employer must hold delegate elections.

I. Employee Governance Committee (Comité d’entreprise)

The Labour Code provides for an Employee Governance Committee to be created for each company employing at least 50 employees (article 464).

The committee is responsible for:

· Structural and technological transformations to be carried out by the company

· The social balance sheet

· The production strategy of the company and the ways to increase profitability

· The development and implementation of employee relations projects for the benefit of employees.

· Apprenticeship programs on-the-job training (formation-insertion), programs designed to fight illiteracy and continuing education for employees

This committee meets once every 6 months and when it is deemed necessary.

J. Other Issues

All employers are required to pay Income Tax on behalf of their employees.

Furthermore, all employees must be registered in the Social Security Program (CNSS).

Companies are required to maintain work accident and illness insurance. They are also required to maintain Obligatory Health Insurance through the State program at a minimum and may choose to provide an additional private policy.

4 commentaires:

bluewindow a dit…
Ce commentaire a été supprimé par l'auteur.
bluewindow a dit…

At the end of the introduction to Section B - Hiring it says
"As for determined period contracts, in case of termination of contract prior to the end of the contract period for reasons other than serious offence, the damages to be paid are equal to the remainder of the salary to be paid through the end of the contract period"

Does anyone know anymore about this specific provision for fixed period contracts as I cannot find anything else about it elsewhere. Even my lawyer says that this provision does not exist in Moroccan law.
Thanks, BW

Joy a dit…

Article 33 of the Moroccan Labour Law - Law n65.99.
The Arabic version is available here: www.maroc.ma/NR/rdonlyres/1B670BBA.../النصالكامللمدونةالشغل.doc

or here:
http://www.maroc.ma/PortailInst/Ar/MenuGauche/%D8%A7%D9%84%D8%A3%D9%88%D8%B1%D8%A7%D8%B4+%D8%A7%D9%84%D9%83%D8%A8%D8%B1%D9%89/%D9%82%D8%A7%D9%86%D9%88%D9%86+%D8%A7%D9%84%D8%B4%D8%BA%D9%84/%D9%85%D8%AF%D9%88%D9%86%D8%A9+%D8%A7%D9%84%D8%B4%D8%BA%D9%84.htm

bluewindow a dit…

Joy, thank you, BW