Généralités relatives au droit de travail en Tunisie

I. Le droit du travail en Tunisie

Les dispositions du Code du travail sont d'ordre public, elles s'appliquent tant que les dispositions des conventions collectives ou particulières ne sont pas plus favorables à l'employé.

Le contrat de travail s'appliquant à un employé établi en Tunisie (quelle que soit sa nationalité) est régi, obligatoirement par le droit tunisien.

Conformément à l'article 139 du Code du travail, "la rémunération des travailleurs doit être payée en monnaie ayant court légal en Tunisie." De ce fait, les employés établis en Tunisie sont payés en dinars tunisiens.

Le droit tunisien ne régit pas encore d'une manière spécifique le travail à domicile "home office" ou "télé-travail", mais ne l'interdit pas non plus.

II. La sécurité sociale en Tunisie

Toutes les entreprises établies en Tunisie et faisant travailler au moins un salarié doivent être affiliées à la caisse nationale de la sécurité sociale (CNSS).

Les cotisations dues sont fixées au taux de 7,5% forfaitaire sur la base d'un revenu mensuel égal au deux tiers du salaire minimum professionnel garanti.

Le taux des cotisations est réparti sur la base des 2/3 à la charge de l’employeur et de 1/3 à la charge du salarié, en ce qui concerne les travailleurs qui exercent sous l’autorité d’un employeur. Ce taux est supporté exclusivement par les travailleurs exerçant pour leur propre compte.

Labour Law - Company' Joint Commission

Establishment / Operation

According to the provisions of Article 157 of the Labor Code, any company employing at least forty (40) permanent workers, should elect a consultative structure called "Joint Commission"(Commission Consultative d’Entreprise), composed of equal numbers of representatives of the Company management, and elected workers' representatives.

The Commission is chaired by the Company' Manager, and in his absence by his duly authorized representative.

Mission

The Joint Commission is consulted on the following issues:

* The organization of work in the company to improve production and productivity;
* Issues relating to social work in the company for the benefit of the workers and their families;
* Promotion and vocational rehabilitation;

* Learning and vocational training;

* Discipline, in which case the commission states as Disciplinary Committee;
* Examination of issues related to health and safety at work.

In performing its attributions, the Joint Commission shall take account of the company' economic and social interests. For that purpose, the Manager has to inform the Joint Commission about the economic and social situation of the Company and its future plans.

Number of Representatives

For Companies employing between 40 and 150 permanent workers, the number of representatives of the company management and the staff representatives are fixed to three (03) members and three (03) alternate members of each party.

This number can not be amended during the term due to an increase or a reduction in the size of the company.

Employees called to serve on the Joint Commission are regarded as on duty, and paid accordingly.

Term

The mandate of the members is fixed to three (03) years.

Exceptionally, the mandate can be extended by written agreement between the Employer and the staff representatives, provided that the extension does not exceed one (01) year.

Eligibility

Every permanent employee, working in the company and having reached the age of 20 years is eligible.

Exceptions: Cannot be elected:

- The employees being on long-term sick leave,

- The employees having been the object of 2^nd degree not deleted disciplinary measures,

- The spouse, the ascendants, descendants, brothers, sisters and the allies of the Employer.

Elections
Each employee working in the Company is entitled to elect the staff representatives..

- Election' workers information: Workers are informed about the elections by means of posters in places most frequented by them, and this thirty-five (35) days before the election date.

- Members / Alternates: The candidates who obtain the largest number of votes shall be elected members. Those who come after, are elected alternates.

In case of equality of voices, the oldest in the company are elected, and in case of equal seniority, the oldest is elected.

Disputes

Disputes related to the elections are brought before the competent regional office of the Social Affairs Ministry:

* Ten (10) days before the election date, as regards the right of voters and eligibility;

* During the fifteen (15) days following the elections, regarding disputes related to the regularity of the voting;

The Chief-officer of the regional office of the Social Affairs Ministry shall decide the dispute within seven days (07) after the date of the dispute' submission.

Electoral colleges / Distribution of seats representing staff

The company staff is divided into three (03) electoral colleges: the agents of execution, the supervisors and executives.

Conditions of regrouping the supervisors and executives in one college:

This regrouping is performed when the number of one of these two categories is less than 10% of all the staff and the number of employees belonging to the two categories is less than 30% of all the staff.

Rule of distribution of seats reserved to an election college:

Global number of seats x (The number of the employees of the college ÷ total workforce of the company)

Obligations of the Manager towards the Joint Commission

The Manager must provide the Joint Commission with the facilities necessary for its functioning, taking into account its needs and the company resources.

The manager shall make available to the Joint Commission panels in the places most frequented by workers.

For companies employing between 40 and 150 permanent workers, the manager should grant to representative members the required time to carry out their functions, within eight (08) hours per month for all staff's representatives.

These hours are considered working hours.

Staff representatives may, within the hours allocated to them, make the necessary contacts (inside and outside the company) subject to inform the Employer and not compromise the usual activity of the Company.

Working Groups

The Commission may establish working groups to examine specific issues.

The Commission may associate with this work, anyone it deems appropriate.

Revocation

Any elected member may be dismissed from the Commission on a written and motivated proposal from the 1/3 at least of the college to which he belongs.

Annual Report

The Commission produces an annual report detailing its activities which shall be brought to the attention of company' staff.

In the first quarter of each year, a copy of the annual report shall be sent by the Employer to the competent Regional Labor Inspection and the competent Medical Inspection of Labor.

Redundancy of a member of the Commission

Any redundancy of a staff representative or alternate member of the Joint Commission, envisaged by the Employer, shall be submitted by this latter to the competent regional Labor Inspection, which issues a motivated opinion within a period not exceeding ten (10) days.

Any redundancy without compliance with the aforementionned procedure, or contrary to the opinion of the competent regional Labor inspection, is considered unfair, unless the manager establish before the competent Court the existence of a real and serious cause justifying the dismissal.

Disciplinary measures applicable to any staff representative

Pursuant to the provisions of Article 167 of the Labor Code, in cases of serious misconduct by a staff representative or alternate member of the Joint Commission, the Employer may suspend him immediately, with partial or total loss of wages.
The concerned employee shall be informed (date, reasons for suspension).

The final decision shall be taken within a period not exceeding one (01) month from the date of suspension from work.

Furthermore, in case of redundancy or lay-off for economic or technological reasons, according to the provisions of Article 166 bis of the Labor Code, the staff representative benefits from the priority in the preservation of the job (whether members of the Joint Commission, or union representative).

Tunisia - Visitor for business' allowed activities

1. Activities authorized as a visitor for business

If the visitor for business is an employee in a company, he is allowed to carry out only activities related to the mission to whom he is assigned in Tunisia; it means that he has to respect tightly what is certified in the letter of attachment signed by his company.

The said activities shall also be fitting his academic degrees and specialties; if he is assigned to a mission different from his specialty he has to present what proves that he conducted the same mission in his company of origin.

To be noted that when the Foreigner presents his application for a temporary visa he shall specify the reasons of his stay in Tunisia therefore he is allowed to carry out activities mentioned under these reasons, according to article 13 of the Decree n° 68-1968 of June 22, 1968 regulating the entry and the stay of foreigners in Tunisia.

In the event that the foreigner intents to conduct a business or carry out a commerce he shall, when applying for his visa, obtain an authorization from the competent authorities, according to the provisions of the same said decree.

2. Penalties for non compliance

Any employer having recruited a foreign worker shall register him within 48 hours on a special register in line with the model set by Order of the Minister of Employment. The said register shall be presented to Labour inspection agents at every request.

Any failure to present the said register or any other required document is punishable by a fine of 60 to 300 dinars. In case of recidivism, the penalty is doubled.

According to the provisions of Article 265 of the Labour Code, infringements of the provisions of the Labor Code related to the employment of a foreign worker contrary to legal requirements shall be punished by a fine of 12 to 30 dinars per day and per worker, as from the time the infringement began until the date when it was noticed.

Minutes prepared by Labour inspection agents shall specify the circumstances of the infringement and the date of its beginning notably based on documents provided by labor legislation and statements made by the company or the workers to the social security fund.

Foreign workers who violate the aforementioned provisions may be subject to an expulsion measure of the Tunisian territory by decision of the Director of the National Security Department. The decision also sets the deadline granted to the concerned workers to leave the country.

Foreign workers unduly employed should be suspended as from the observation of the infringement by the Labour inspection agents.

In case the employer does suspend the unduly employed workers, he incurs the double of the penalties provided in the article 265 of the Labor Code. The workers who continue to work despite the requisition notified by the labour inspection agents shall be punished by an imprisonment of 1 to 15 days and a fine of 120 to 300 dinars or one of the those two penalties.

Data Protection law in Tunisia in 5 questions

1. In Tunisia, do companies processing personal data need to notify the data protection authority of their data processing activities by filing a standard form with the authority?

Yes. Indeed, according to the provisions of Article 7 of law N°2004-63 dated July 27^th, 2004 related to the Data protection, any processing of personal data is subject to the prior authorization of the national instance of protection of personal data.

The statement for the authorization is an application form which shall be filled by the person in charge of the personal data processing or its legal representative.

According to the provisions of Article 16 of the aforementioned law, the authorization is not required for the personal data processing concerning the professional situation of the employees, when the aforementioned treatment was made by the employer and is necessary for the functioning of the Company and for its organization.

2. If companies do need to notify, do they need to identify by name and address the recipients of personal data disclosures or transfers? Or, is a general description of data recipients okay, for example, "companies in the same corporate group"?

The companies need to identify by name and address the recipients of personal data disclosures or transfers in so far article 8 of the Decree N°2007-3004 dated November 27^th, 2007 fixing the conditions and procedures of declaration and authorization of personal data treatment states that " the declaration form prior to the personal data treatment shall comprise the following data :

-full name (i.e. first name, father name and family name) and address of the person in charge of the treatment, sub-contractor and their agents for the natural person (i.e. first name, father name and family name) and if it is a legal person, the company name, the head office, the legal representative identity and the trade registry number, in case of need,

-the concerned persons by the personal data identities and addresses (i.e. first name, father name and family name),

-treatment objectives and norms,

-the personal data treatment categories, place and date,

-the personal data which treatment is envisaged and as well as their origin,

-the persons or authorities who may deal with the data in discharge of their duties,

-the beneficiaries of the personal data treatment,

-place of conservation of personal data subject of the treatment and duration,

-the taken measures to ensure the confidentiality of personal data and safety,

-the description of data bases to which the person in charge is connected,

-the commitment to treat the personal data in conformity with the provided legal provisions,

-the declaration that the conditions of Tunisian nationality, residence in Tunisia and absence of criminal background are met by the person in charge of the personal data treatment, sub-contractor and their agents."

3. What is the deadline for updating notifications?

The authorization is granted one (01) month after submitting a complete file if the processing of personal complies with the legislation in force.

The law does not provide renewal procedures.

The authorization is withdrawn if the person in charge of the personal data treatment or sub-contractor breach the legal obligations which he is submitted to. In this case, the instance shall decide, subsequent to an audition, the authorization withdrawal and the treatment prohibition.

Besides, it should be noted that according to the article 21 of the law N°2004-63, the person in charge of the personal data treatment or sub-contractor shall correct, complete, modify or update the files which they have, and erase the personal data of these files if they were aware of the inaccuracy or inadequacy of these data. In this case, the person in charge of the personal data treatment has to inform in writing the concerned person and the legal beneficiary about any data modification within two (02) months.

4. Are there any special requirements for disclosures of personal data between corporate affiliates where both the disclosing and the receiving entity are based in Tunisia? My guess is that disclosures within Tunisia must be proportionate, not involve inaccurate data and respect the original purpose of collection. Note that this question is not about cross border transfers of personal data, only disclosures of personal data that occur from one company to an affiliate in Tunisia.

As a general rule and according to articles 2 and 3 of the law N°2004-63, the law regulates the manual and automated processing of personal data performed by individuals or legal entities, whatever is the legal and licit use, whatever the receiver of the data is a Tunisian subsidiary or a parent company incorporated abroad.

The law applies to any use of personal data that exceeds the personal or family use and which is transmitted to third parties.

5. Are there any special requirements for a Tunisian company that is being taken over by a new parent company to inform the data protection authority of the transaction and the fact that it will obtain a new parent? Does the Tunisian data protection law or authority impose any special requirements for companies undergoing a merger or acquisition?

The legislation in force does not specify the case of merger or acquisition.

However, in case of retirement or cessation of activity, the person in charge of the treatment (or legal representative of the company) shall inform the national instance of protection of personal data three (03) months before the cessation date.

In case of death of the person in charge of the treatment or winding up of the company, the heirs or the liquidator (as appropriate) shall notify he national instance of protection of personal data within three (03) months as from the event.

It is relevant to note that all those involved in the personal data processing have to preserve confidentiality of the treated personal data, except in the statutory cases, after the end of the treatment or the loss of their quality,

Finally, it should be noted that the person in charge of the personal data treatment, the legal representative of the company, his agents, the sub-contractor and his agents shall be Tunisian citizens, residents in Tunisia and without criminal record.

Work permit process in Tunisia

1. Work permit' lead Time

10 days at least.

2. Process

The Company or its legal counsel shall submit the file with all the documents at the Ministry of Employment.

3. Documentary requirements

Please find herein after the check-list of the documentary requirements.

Documents related to the employee

- 4 originals of the foreigner work contract application to be completed by the parties (# Attachment N°1);

- 4 photography;

- copy of the employees' passport;

- Professional references (CV, copies Certified against original diplomas and Work certificates in Arabic or French);

- copy of the residency permit for employees who have previously been resident in Tunisia;

- two one (01) Tunisian dinar tax stamps.

Documents related to the Company

- copy of the attestation of investment declaration or of the merchant’s card;

- The extract from the Trade Registry;

- copy of the declaration that a company exists and of the tax identification card;

- copy of the notice for publication in the Official Journal of the Tunisian Republic (JORT) concerning the Company incorporation;

- copy of the company’s articles of association;

- copy of the nominative document of employees issued by the national social security authority (CNSS), with copy of the payment receipt;

- attestation from the geographically relevant regional office of the Ministry of Employment (MEIPJ) justifying the absence of similar skills among Tunisian job seekers for the post in question

- certificate of secondment only if the employer is awarded a public market in Tunisia;

4. Possibility to convert a business visa to work permit

No legal requirement prevents the conversion of business visa (# Application form – Attached N°2) to work permit. However, the work permit and the transfer of business visa to a residence card shall be made during the visa validity; otherwise, the employee shall renew his business visa or leave the Tunisian territory for at least 24 hours and then return.

It shall be noted that many nationalities do not require an entry visa to the Tunisian territory[1]. For these cases, the stay in Tunisia shall not exceed three (03) months without interruption.

The work permit can be processed in parallel to the consultant being in Tunisia on a business visa.

5. Other specific details

It shall be noted that :

- The term of the foreign employee’s employment contract should not exceed one (1) year renewable only once, except specific legislative provisions or conventions concluded between Tunisia and foreign countries. However, the employment contract can be renewed for more than once when it concerns the employment of foreigners in their companies exerting in Tunisia in the framework of the realization of development projects approved by the competent authorities, as stated by article 258-2 of the Labor Code.

- Tunisian law provides that certain foreign employees are exempted from the visa of employment contract (i.e. work permit). The foreigners exempted from the work permit are listed as following:

· Foreigners having the quality of employer;

· Foreigners having the quality of Manager or Joint Manager;

· Foreign people working on behalf of an international organization or associations ;

· Moroccan and Algerian nationals (employers and salaries employees);

· Employees exerting under one of the regimes covering the following industry branches:

- wholly exporting companies aimed under article 18 of the law n° 93-120 of December 27, 1993 bearing promulgation of Incentives to the Investments Code : These companies are authorized to recruit agents of direction and framing of foreign nationality within the limit of four (04) people for each company;

- Companies installed in the Economic activities Parks (Economic Franchise ex-Zones) governed by the law n° 94-14 of January 31, 1994 : These companies are authorized, under the terms of article 24 of the aforesaid law, to recruit four (4) direction and framing staff of foreign nationality for each company. Beyond this limit, the companies must conform to the program of recruitment and tunisification approved beforehand by the Employment and Youth Professional Insertion Ministry;

- Banks and financial organisms aimed by the law n°85-108 of December 6, 1985 bearing encouragement of financial and banking organizations working primarily with the non-residents : These financial organisms and banking can appoint freely foreign supervisory staff. Notification of these recruitments must be made at the Central Bank of Tunisia “B.C.T.”.

- Oil companies exerting hydrocarbons prospection and research activities. These companies are authorized to freely recruit a supervisory staff of foreign nationality, according to articles 124 and 125 of Hydrocarbons Code;

- Companies, carrying on prospection, research and mining activities: These companies are authorized to recruit supervisory staff of foreign nationality, and this, after information of the Employment Ministry;

- Health establishments which the totality of their services are provided for the benefit of non resident.

In all the above mentioned cases, notification of recruitments carried out will have to be made to the Employment Ministry and Youth Professional Insertion which delivers, at request, a Certificate of non submission to the visa of the contract of employment.

Documents to be provided to obtain the certificate of non submission to the visa of foreigner labor contract are as follow:

· Declaration of recruitment of foreign executive officers (Specific pplication form);

· References of the foreign employees (diplomas, certificates of work, etc)

· Legal documents related to the constitution of the company ( Copy of the declaration submission’s certificate (API approval or APIA or CEPEX…), copy of the company’s tax identification card, copies of the bylaws and copies of the trade register);

· Copy of the passport’s first three pages;

· Last quarterly declaration of the CNSS;

· Two tax stamps of one (01) tunisian dianr each one.

· The recruitment declaration and the professional references are not necessary for the Manager, the Joint Manager and the Board of Directors Chairman.

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[1] Austria, Belgium, Finland, France, Germany, Greece, Italy, Luxembourg, The Netherlands, Portugal, Spain and Switzerland, Algeria (unlimited stay), Andorra, Antigua & Barbuda, Argentina, Bahrain, Barbados, Bermuda, Bosnia & Herzegovina, Brazil, Brunei, Bulgaria (two months max.), Chile, Côte d'Ivoire,Croatia, Dominica, Fiji, The Gambia Guinea, Honduras, Hong Kong (SAR), Iceland,Kiribati, Korea (Rep), Libya, Liechtenstein, Macedonia (Former Yugoslav Republic),Malaysia, Maldives, Mali, Mauritania, Mauritius,Monaco,Morocco (unlimited stay),Niger, Norway, Oman, Qatar, Romania, St Kitts & Nevis, St Lucia, San Marino, Senegal, Serbia & Montenegro, Seychelles, Solomon Island, Switzerland, Turkey and Vatican Cit.