Compliance and actions during covid-19
In addition to the measures taken by the government in view of Decrees 20-69 and 20-70, and following the economic difficulties caused by the pandemic, employers are required to redesign the HR policies in order to comply.
On the one hand, short terms actions must aim to preserve the performance of labor contracts.
On the other hand, midterm actions may focus on work termination. The crux is to assess the applicable law to plan some creative and compliant RH policies. Otherwise, liabilities are likely to be raised tomorrow.
MEASURES TO PRESERVE THE CONTRACT IN FORCE
Organization of working hours and part-time work, governed by code 90-11 and ordinance 97-03 relating to legal working hours.
The minimum threshold is of 20 hours, which is half the usual hourly volume.
Thus, if the employer finds a significant reduction in the volume of work, he could propose such solution.
TELEWORKING,
although it is expressly mentioned and provided by the Decrees, is not regulated under the Algerian law. Nevertheless, it is worth mentioning that a Decision of the Supreme Court dated of February, 7th, 2007 granted the employer with the right to amend, from time to time, and based on the needs of the work, the place of performance of the activities of the employees.
In any case, it is highly preferable to execute an agreement with the employees that could be even collective.
The decrease of the payroll,
it is governed by decree 94-09. The employers with more than 09 employees should establish a committee under the concept of a social aspect.
Hence, the employer can take his precautions via the adaptation of the indemnity scheme (premiums/bonuses) – Review of the modes and levels of the remuneration of work – Freezing of advancements. Finally, these measures must be made after the negotiation and agreement with the committee of the social aspect of the employee.
Yet, the employer is not obliged to go through this social aspect method if he prefers a collective agreement.
In case of impossibility of the performance, the employer should amend his HR policies and opt for discontinuity of the services:
- The unpaid leave : is a measure to be adopted by the employer only under the consent of the employees and even in that case, not exempted from risks. In fact, it could be considered as contravening to the provisions of Decree 20-70.
Leave in advance : here the employer could grant a leave to the employees, even if they did not acquire the right to such leave so far. Once again, the consent of the employee will be necessary and the employer cannot opt for this solution unilaterally.
The suspension of the work relation : In fact under some specific labor contracts, it is possible to proceed with the suspension of the contract under common consent.
This solution is provided under art. 64 of the Labor Law (Law 90-11). The suspension might be enacted also due to sick leave, as provided by the social security regulatory framework.
The exceptional paid leave : The Labor code does not regulate the exceptional paid leave, targeting at least 50% of the effective personnel, as provided by the Decree 20-69. The pregnant women, women with young children and chronically ill people should be the priority targets of the exceptional leave.
Furthermore, in case of the complete suspension of the activities for any reason, the exceptional paid leave must be extended to all the personnel. Since its implementation is mandatory, based on the combination of Decrees 20-69 and 20-70, it is unlikely to restrict the freedom of contracting in the framework of individual or collective agreements.
In conclusion even if many options are available, the obligation to grant exceptional paid leave heavily limit the extent of RH policies. In other words, it is likely that any policy circumventing the mandatory exceptional paid leaves can be challenged in the future.
RIGHTS OF CONTRACTS TERMINATION
Breaking the contractual bond automatically.
Retirement for reaching the legal age, as provided by the Law 83-12. If the employee reached at least the age of 60 and worked for at least 15 years, he/she will be entitled for retirement pension.
Therefore, in the framework of the pandemic, the employer could terminate the labor contract for the employees meeting the requirements for retirement, especially in consideration that due to their age, they could be the weakest and more exposed to the consequences of infection.
Termination of contract during trial period, actually here, each of the Parties to the contract could discretionarily terminate the contract at any time, if the notice deadline is respected.
In fact, since this kind of termination is not subjected to any formalities and conditions, as provided by art. 20 of the Law 90-11, there should be no issues for the employer to terminate the contract.
Termination of labor contracts with the performance of specific procedures.
Early retirement is a right provided by the Decree 94-10 In fact, art. 2 prescribe that it might be applicable to all the employees that are likely to lose their job involuntarily due to economic reason. Consequently, the employer may propose it to his employee, while respecting the fact that the dismissal of an employee benefiting from early retirement is prohibited
The redundancy of the effective personnel is regulated by Decree 94-09.
Where the economic situation is critical, the companies with more than 9 employees could invoke the application of such procedure. In fact, this is represented by the termination of several individual labor contracts for the reduction of the effective personnel.
The employees will enjoy compensation equal to 3 months of wages (to be paid from the employer to the employees admitted to the regime of unemployment insurance).
Chomage technique (a sort of unemployment subsidy), regulated by Decree 94-11. Here, it is worth to note that it is unlikely that this solution will be viable under the COVID-19 emergency.
In fact, this solution has strict requirements; in particular, the activities of the company should be terminated and not temporary suspended.
Moreover, in order to implement it, a procedure before the Labor Inspection has to be launched and it is unlikely that under the current circumstances a company will receive a prompt feedback and follow-up.
Finally, this option has to be adopted with the consent of the employees, externalized under a collective agreement or several individual agreements.
Hence, it is a method of termination of the work relation under common consent.