Questions / Answers on the Labour Code

One can benefit from the annual leave paid throughout the year. The schedule of departures is established by the employer after consultation with the interested parties and consultation of the workers’ representatives. Interested parties must be informed at least 30 days in advance (Articles 244 to 246).

It is permissible to divide the annual leave, postpone its enjoyment and regroup it by agreement of the two parties over two years, without however that the period of effective enjoyment is reduced to less than 12 working days including two days of weekly rest ( art 240).

The benefit of an effective rest is of public order and can not be waived, including against compensation (art. 242).

Consequently, a distinction must be drawn between this period and the period of notice following the notice of dismissal (section 243). On the other hand, it is permitted to increase the duration of the period of compensatory rest days due to the employee (Article 241).

In addition, days off work due to sickness can not be counted as part of annual leave (Section 235).

The financial compensation for paid annual leave is only authorized when the contract ends before the employee can benefit (Article 252-254-255-257, Order of the Minister of Employment and Vocational Training No. 344-05 of 9 February 2005 laying down the procedures for calculating the compensatory allowance for paid annual leave).

The law seeks to give the employee an effective rest during paid annual leave; this is why the worker is not allowed to engage his services as an employee during this period (Article 263). It is also forbidden for the employer to entrust him with any work during the leave, whether free of charge or onerous (art. 262).

The right to annual leave is a matter of public policy and it is permissible to split the actual enjoyment that one would like to have, by agreement of the parties, without this leading to the deprivation of the employee or the minimum duration of the leave provided for. the total number of days of rest required for this purpose.

Unless otherwise agreed by the parties, the employee’s absences without the employer’s authorization constitute disciplinary or even serious misconduct when they are cumulative over 8 half-days or 4 whole days over a 12-month period, unless whether it is sickness or other authorized absences. It should be recalled in this connection that sick days occurring during annual leave are not counted in the duration of the vacation.

The right to annual leave is a matter of public policy and it is permissible to split the actual enjoyment that one would like to have, by agreement of the parties, without this leading to the deprivation of the employee or the minimum duration of the leave provided for. the total number of days of rest required for this purpose.

Unless otherwise agreed by the parties, the employee’s absences without the employer’s authorization constitute disciplinary or even serious misconduct when they are cumulative over 8 half-days or 4 whole days over a 12-month period, unless whether it is sickness or other authorized absences. It should be recalled in this connection that sick days occurring during annual leave are not counted in the duration of the vacation.

The Labour Code sets out the list of leaves and leave of absence due to the employee as well as the conditions for enjoying it, as follows:

1 – Leave:

• Leave of 3 days for a birth (art 269).
• Sick days.
• Period of incapacity for work due to an accident at work or an occupational disease.

2 – Authorized absences justified by a family event, in this case:

• Marriage of the employee (4 days).
• Marriage of a worker’s child or child’s spouse (2 days).
• Death of a spouse, a descendant, an ascendant or those of the spouse (2 days).

These leaves and leave authorizations do not affect the length of the annual paid vacation, either positively or negatively.

The employee in a state of sickness has the right to suspend the work, on condition of notifying the employer within 48 hours and sending him a medical certificate advising him of the probable duration of the absence when this exceeds four days (art 271).

If the worker permanently loses working capacity or is absent for 180 continuous or discontinuous days over a period of 365 days, the employer may consider him resigning, which should dispense him from the notice of dismissal and the corresponding indemnity.

During the duration of the absence due to illness, the salary is suspended unless otherwise agreed.

When the absence is the result of an accident at work or an occupational disease, the leave and subsequent compensation plan is that of accidents at work.

Compensation for sick leave with annual leave is prohibited.

The wage which constitutes an essential element of the contract of employment is fixed freely by agreement between the employer and the worker, subject to respecting the minimum legal threshold, the seniority bonus and the collective agreements which engage the employer (art 345).

In this case, it is necessary to apply the remuneration which they may have agreed for prior work and, failing that, resort to the usages in force to which they are presumed to have referred (art 345).

The new contributions of the code, as wages, are constituted by the proclamation of equal pay for work of equal value, the extension of the scope of the legal minimum wage, the increase of the ceiling of the premium. seniority and the award of a senior lien over the other claims against the company.

Article 346 of the Code prohibits any wage discrimination between the sexes for work of equal value. This principle is superior to that of equal pay for equal work. It requires a comparison of qualifications and skills to avoid serving inappropriate pay in positions held more by women than by men. The employer is, for example, required to justify the payment of a salary lower than the cook compared to the guardian or the midwife in comparison with the anesthetist … etc.