Questions / Answers on the Labour Code

Codification means in law, the scheduling of the rules governing a given subject, in a methodical and continuous manner, allowing their overall assimilation and facilitating the identification of the rules applicable to each particular case. If such an objective could be achieved by the inclusion in the Labour Code of all the legislative rules in force in the field of labour relations, its adoption also carries out an advanced reform of its content, which aimed at its conformity with the international law norms and their adaptation to the necessities of the economic, political and social evolution that the country and are world environment have known during the last decades. This codification is, furthermore, the fruit of an in-depth social dialogue between the social partners.

Like all legislative projects, the draft code (1994) was developed by the government. It was then discussed in the Justice and Legislation Committee of the parliament, which made many comments on it, which led to its withdrawal for recasting. Following the Tripartite Declaration of August 1996, a commission was set up to resume its study and reformulate it, in consultation with the economic and social partners.

Its text has been redrafted and a consensus has been reached on most of its subjects, with the exception of a few points which have been decided in the context of the Tripartite Agreement of 30 April 2003. The draft code of work thus obtained was then presented to the House of Councilors who approved it unanimously, thus extending the consensus it had collected. It was then transmitted to the First Chamber, which adopted it in its own right. The Labour Code entered into force on 8 June 2004, counting among the legislative texts approved unanimously, without amendment.

The Labour Code has surrounded the fundamental principles and rights at work in the 1998 ILO Declaration of Particular Care, reflected in the provisions on equality and non-discrimination, freedom of the right to collective bargaining and the prohibition of child labour and forced labour. Its authors have also made sure to ensure the conformity of its content with all conventions ratified by Morocco, as emphasized in its preamble, which leads to interpret its content in their light.

The main innovations tend to:

– Extend the scope of application of labour legislation to include all salaried relationships, with the exception of those pertaining to the status of the civil service or special schemes (housekeepers and micro-enterprises of traditional crafts) .

– Set the rules of the code as a minimum legal device applicable in all situations as long as a law does not provide otherwise.

– Extend the structures of dialogue and collective bargaining in the enterprise by setting up the works council and the safety and health committee in establishments and / or enterprises with at least 50 employees, as well as by recognition of the union representative in companies with 100 employees, at least.

– Reduce the weekly hours of work to 44 hours, allowing its distribution over the year under a ceiling of 2288 hours in non-agricultural activities and 2496 hours in agricultural holdings.

– Allow companies facing economic difficulties to reduce working hours.

– Strengthen information and consultation of workers’ representatives.

Specify the terms of use of the fixed-term contract and those governing the end of the employment relationship.

– Put in place new instruments for labour market management, including temporary work.

– Organize collective bargaining and collective dispute resolution procedure.

In addition to civil servants who benefit from administrative law, which excludes the application of labour legislation to them, public enterprises continue to be subject to the laws that established them. Similarly, certain laws regulating particular activities or sectors such as mining, merchant shipping, and the professional practice of journalism, retain their effects, which calls for harmonizing the internal regulations of the companies concerned with the provisions of the code. Discrepancies may arise, for example, about advancement and discipline procedures or public service constraints. No doubt, the repeal of the Dahir of 1962 and its implementing decree of 1963 concerning labour relations in public enterprises imposes, even more, subordination to the rules of the Labour Code, which now appear in the common law of the job.

Labour law is considered to be of public order, which means that its violation is subject to criminal and / or civil penalties.

As the code is of a legislative nature, it subjects to its provisions all other lower-ranking rules, such as those deriving from regulations, case law and customs. A fortiori, the stipulations of the collective agreements, the internal regulations of the companies and the contracts of work must be in conformity with the law in force, all sources confused. This implies the harmonization of laws between them and the bringing of the lower standards into line with the legislation. This mission comes down to the interpretation as well as to the rules. However, the public social order which imposes the respect of all the rules of the labour law, also makes it possible to deviate from it in the interest of the part envisaged by the protection, in this case the employees. In other words, labour law, in its entirety, is a floor for the protection of workers which can only be waived to replace its measures by others more favorable to the worker. Thus, for example, the employment contract may provide for a shorter probationary period than that prescribed by the Labour Code and the collective agreement is entitled to increase the seniority bonus or the rules of procedure to recognize the representative. union in an establishment of less than 100 employees.legislative and regulatory authorities, under the control of constitutional and specialized judicial bodies.

The employment of foreign workers is subject to the obtaining by their employer of an authorization issued by the governmental authority in charge of labour, in the form of a visa affixed to their contract (Article 516). This must mention the employer’s commitment to cover the expenses of repatriation of the foreign worker to his country or place of residence, in case of refusal of authorization (art. 518).

This contract must be drawn up in duplicate, in accordance with the administrative model established by the order of the Minister of Employment and Vocational Training dated 9 February 2005.

In this case, can the employee claim damages as a result of his dismissal since the authorization is given to the employer, who would therefore bear the effects of the early resolution of the contract, Or should it be considered that he did not commit a fault and that one is in the presence of a case of force majeure or fact of the prince? Does he have to bear the repatriation expenses of the worker in this case, since this support is provided for, according to the wording of the Code and Ministerial Order, only in case of refusal to grant the authorization and does not include the hypothesis of its withdrawal? Two questions to be answered by the case-law, the courts having to take into account in their interpretation of these rules, factual circumstances and in particular the imputability of the withdrawal of the authorization to one or the other party Referring to this, it can be seen whether the duration of the undertaking can be determined or not, but that it takes effect compulsorily on the date of the visa and expires at the end of the authorization (Article 516). It should be noted that authorization may be withdrawn before its expiry.

The code instituted this new category of employment contract and reserved an autonomous regime for them. Although it is acceptable to consider this as a type of fixed-term contract, these contracts are distinguished by the presence of three contracting parties, which gives rise to a contractual arrangement between the temporary employment agency and the user enterprise on one side and between the latter and the employee on the other.

This contract was surrounded by the code of particular rules, the most important of which relate to the circumstances which authorize its use (article 496-498), the conditions relating to the conclusion of the contract (article 499-502), the obtaining administrative authorization by these agencies (art. 477-481-495) and consulting the representative bodies of workers by the employer who uses them (art. 496) … etc.

As regards the duration of the contract which makes the employee available to the user undertaking, it can not exceed the duration of the absence of the replaced worker, nor the period of three months renewable once, in case temporary increase of the activity of the enterprise or six months for the execution of a seasonal work or considered temporary, according to the habits and customs (art 500).

Like other contracts with successive execution, the employment contract is concluded, either for a predetermined duration or for an indefinite period.

According to the rules of the Code, the employment of workers is usually done by means of a contract of indefinite duration (CDI) and it is authorized to resort to the fixed-term contract (CDD) only in the cases provided for Articles 16 and 17 on:

First: the assumptions in which one can only contract for a period of six months at most, which include:

the replacement of an employee by another whose employment contract is suspended for a reason other than the strike (maternity, sickness, leave … etc).
the temporary increase in the volume of business activity.
the execution of seasonal work.
the employment of an employee in the agricultural sector, in which case the renewal of his contract is allowed several times, within the limit of two years, at the end of which it becomes a permanent contract.

Second: when opening an establishment, a company or launching a new product in a non-agricultural sector, it is possible to hire an employee for a maximum of one year, renewable once; at the end of these deadlines, it becomes a permanent contract.

Third – the ability to conclude a contract for the duration of an enterprise that ends with the completion of the work to be carried out, regardless of its effective duration.

In general, the employee must respect all the legal and conventional rules; it is required, in particular, to take all necessary measures to protect the health, safety and dignity of its workers when carrying out the work. He must also provide them, in writing, with the following information:

• To the collective agreement signed by the company, if applicable.
• Its rules of procedure.
• Working hours and weekly rest periods.
• The legal and operational provisions relating to the preservation of safety and health.
• The methods of payment of wages.
• Registration at the CNSS.
• The identification of the insurance body against accidents at work and occupational diseases.