Contributed By Cabinet d'Avocats Kadri
Nigerien law makes no fundamental distinction between blue- and white-collar workers, but it does make a distinction between various trades in certain occupational categories.
The distinction between occupational categories is defined by the collective agreement of the professions in a document annexed to the law. It distinguishes between manual jobs (blue-collar workers), non-manual jobs (employees with a level of education equivalent to High School), supervisors, technicians, engineers and managers.
The Niger Labour Code provides for the following:
According to the Labour Code, an employment contract comes into being as soon as a subordinate link between the employer and the employee is established, ie, one natural person performing a task for the second natural or legal person for remuneration. In principle, a written document is not necessary for there to be a contract since the contract was freely entered into (Article 42). However, some contracts must necessarily be in writing:
Article 99 of the Labour Code sets the working time at 40 hours per week. However, depending on the intermittent nature of the work, certain periods of presence are considered equivalent to that fixed by the code.
The Decree establishing the regulatory part of the Labour Code sets the equivalent hours of work as follows:
Article 139 provides that the hours of work as described above may be extended to ten hours per day. Such an extension is made possible by the decree of the Minister of Labour after taking the opinion of professional organisations.
The law does not regard part-time work as a type of employment contract. However, because of its atypical nature it is similar to a fixed-term contract of employment and is made subject to the same formal conditions.
In addition to the fixed working time, workers shall be paid overtime. This is fixed by the decree that establishes part of the Labour Code (Article 145), ie:
Regarding rest-day and holiday work, overtime shall be calculated at 50% of the normal hourly wage when the work is day work and 100% of the normal hourly wage when it is night work.
Article 163 of the Labour Code stipulates that the guaranteed inter-professional minimum wage shall be fixed by the Decree adopted by the Council of Ministers after consulting the Consultative Commission on Labour and Employment. Article 47 of the collective agreement defines the various premiums regulated in Niger.
The basic salary and the transport allowance are compulsory and must be paid by the employer. Other premiums, as defined in paragraph (c) of the same Article, shall be left to the discretion of the employer. Foreign workers receive an expatriation allowance equivalent to 40% of his or her monthly basic salary in compensation for any additional expenses and risks caused by his or her coming to Niger.
Compensation and pay increases are agreed between the employer and the employee. Neither the state nor public institutions may intervene.
Through the provisions of Articles 116 to 126 of the Labour Code and Articles 54 to 56 of the Collective Agreement, the law lays down the conditions for granting leave to employees. Of these conditions the law notes that:
Where a contract has been terminated before the worker has taken accrued leave, he or she shall be paid compensation in proportion to his or her working time. At the time of the employee’s departure he or she shall be paid (in accordance with the provisions of Article 126 of the Labour Code and Article 55 of the collective agreement) severance pay based on his or her gross salary received during the 12 months preceding his or her departure.
The law provides for the suspension of employment contracts for certain types of employees:
Article 43 of the Labour Code and Article 21 of the Collective Agreement imposes an obligation of confidentiality on workers for the entire duration of their contract. The employee shall be liable for any damage caused to the company and others. This liability may be civil or penal (if the harmful event is punishable by law as a criminal offence). It should be noted, however, that the employer may also be sued by reason of agency as provided for in the Civil Code.
Non-competition clauses are defined by Article 43 of the Labour Code and Article 21 of the Collective Agreement respectively. The latter provision expressly prohibits the employee from carrying out any professional activity that competes with his or her employers’ undertaking or interferes with the proper performance of the agreed services.
There are very few instances of prosecutions for breach of a non-competition clause.
The legal provisions in force do not provide for non-solicitation clauses.
Article 5 of Law No 2017-28 of 3 May 2017 on personal data requires companies to apply for authorisation before processing personal data belonging to its employees and clients. Article 19 requires that such data processing must be confidential and protected. Within a period of one month, extendable only once, the competent authority shall authorise the employer to process the data.
There is no statutory limitation on the number of foreign workers employed by a company. However, the last paragraph of Article 48 of the Labour Code provides: "In any event, the use of foreign labour is subject to the absence of national competences, unless the Minister in charge of Labour expressly grants a derogation."
In addition, the employment of a foreign worker is subject to receipt of a visa from the competent authority, the duration of which – according to the provisions of Article 131 paragraph 1 of Decree No 2017-682 of 10 August 2017 on the regulatory part of the Labour Code – shall not "exceed two years, renewable once".
For a foreign worker to be able to work for a company in Niger, several conditions must be met, ie:
Trade unions are recognised (Article 5 of the Labour Code). This is a fundamental right. The legal framework is enshrined in Articles 183 to 210 and 223 to 226 of the French Labour Code; 7 to 10 of the Inter-professional Collective Agreement; and 460 to 470 of Decree No 2017-682 of 10 August 2017, part of the French Labour Code.
Article 184 defines trade unions as associations whose purpose is "the study and defence of economic, industrial, commercial and agricultural interests" (who have civil capacity).
Any worker over the age of 16 may stand for election to a union, the results of which shall be recorded by order of the minister in charge of labour. After employee delegates, shop stewards are the second most important type of employee representative in a company. According to Article 223 of the Labour Code, a shop steward may be appointed by any trade union organisation duly constituted and belonging to the most representative employee organisations in any enterprise with more than 50 employees.
The law stipulates that a shop steward "shall ensure the representation of his [or her] union in the company, both to the employer and to the workers" (Article 224 of the Labour Code). His or her term of office will end upon termination of office, termination of employment contract, resignation or the absence of the conditions required for representation.
Employees are also represented by delegates. They may be defined as an institution that represents employees, composed of representatives elected by the employees and charged with defending their interests vis-à-vis the employer. They are the first line of employee representation in a company.
The Labour Code, the Collective Agreement and the Decree establishing the regulatory part of the Labour Code define the legal framework governing the election, duties and dismissal of the employee delegate(s).
The Labour Code provides that delegates shall be elected in any enterprise or establishment with more than ten employees. Delegates are elected for a term of two years and are eligible for re-election (Article 212 of the Labour Code). The number of staff delegates shall be prorated according to the number of employees in the company in accordance with the standards laid down in Article 435 of Decree No 2017-682 of 10 August 2017 (which forms part of the Labour Code). The Labour Code specifies that any worker aged 18 years who has worked for at least six months in the company is eligible.
As regards the duties of the employee representative, they are defined by Article 218 of the Labour Code, ie:
Apart from these duties, staff delegates shall present the workers' complaints within two days of a request for a hearing before the head of the establishment or a duly authorised representative.
According to Article 229 of the Labour Code, a collective labour agreement is an agreement on the terms and conditions of employment and the work or wages as agreed between the representatives of one or more trade unions or professional groups of workers and the representatives of one or more trade unions of employers or any other employer group.
The agreement determines the geographical and occupational scope, the latter being defined in terms of economic activity (Article 230). As regards geographical scope, when an agreement is adopted at a national level all other agreements that are inferior to it (local or regional, as the case may be) must adapt. The collective agreement is concluded for a fixed or indefinite period (Article 235) and may be related to a single area of activity or it may be extended (Article 242).
Apart from collective agreements, there are company unions whose purpose is to adapt the provisions of collective agreements to the conditions of the undertaking. This may include the insertion of new clauses that are more favourable to workers.
The law stipulates that any termination initiated by a party to a contract must be in writing (Article 28 of the collective agreement). Where the initiative to dismiss comes from the employer, it must be justified (Article 78 of the Labour Code).
In cases of termination of contract, Nigerien law provides for two different procedures:
Collective redundancies are covered by the rules governing the operation of the undertaking and are subject to the provisions of Articles 80 and 81 of the Labour Code.
The redundancy procedure consists of three steps:
A termination of contract shall be subject to a period of notice, the time limits of which are fixed by the collective agreement depending on the occupational category of the worker (save for cases of gross negligence). During the period of notice, the parties are bound by the same wage conditions as during the term of the contract. However, a party who intends to terminate the contract without notice shall be obliged under Article 90 of the Labour Code to pay to the other compensation known as compensation of notice, which shall include the remuneration and benefits that the worker would have received during the notice period.
During the notice period the worker is allowed to be absent from work for either two hours a day or two days a week for the purpose of seeking a new job. The fixing of days of absence and any compensation due is to be agreed by the parties. No external authorisation is required.
Serious cause is defined as a reason that justifies or legitimises dismissal. This may arise as a result of the situation of the employer (economic or structural) or the behaviour of the worker. Only the court has jurisdiction (Article 90 of the Labour Code).
Whatever the qualification, the fault that led to the dismissal must be stated in the dismissal letter. A qualification is made by the decision of a competent court after an attempt at conciliation before the labour inspector has been unsuccessful. A notice of non-conciliation is drawn up for this purpose and attached to the written or oral declaration made to the Secretariat of the Labour Court (Article 319 of the Labour Code).
In the event of an irregular or unfair dismissal, the qualification of fault by a competent court shall determine whether or not damages are payable. Unjustified dismissals are considered.
Article 77 of the Labour Code provides that an employment contract may be terminated by mutual agreement. Such an agreement must be made in writing or by a conciliation report drawn up by a labour inspector.
Where the parties have terminated an agreement by mutual consent, they shall only be required to comply with the terms of their agreement and with conventions of the law. In the case of a conciliation agreed before a labour inspector, such an agreement shall be enforceable upon application to the President of the Court for that purpose.
Article 5 of the Labour Code provides that no employer may consider sex, age, national ancestry or social origin, race, religion, political and religious opinion, disability, HIV/AIDS, sickle cell disease and union membership (or not) when making any decision.
The dismissal of an employee representative is subject to a particular formality that falls within the provisions of Article 227 of the Labour Code. Under Article 68 of the collective agreement, the dismissal of a employee representative which derogates from the provisions of Article 227 shall be deemed to be null and void.
Article 227 of the Labour Code stipulates that any dismissal of a personnel representative must be submitted to the labour inspector for approval. He or she must respond to the submission within eight days (21 days in the case of an expert assessment). His or her decision is subject to appeal before the Minister for Labour and legal proceedings before the administrative court.
In the event of gross negligence, the employer may order a suspension not exceeding one month as a precautionary measure. In the event that the dismissal is quashed, the employee delegate may require his or her reinstatement with the company or payment of a sum equal to 36 months' salary (Article 475 Decree establishing a regulatory part of the Labour Code).
The provisions of Article 228 of the Labour Code extend the protections referred to in Article 227 to staff delegates whose mandate has expired within six months following the end of his or her term of office. Former staff delegates with a term of office of at least two years also fall under this protection. The provisions shall also apply to candidates who have put themselves forward for election as a staff representative during the three months following publication of nominations.
In the event of unjustified dismissal, a worker may bring proceedings before a competent court. The claim may only relate to the grounds invoked in the letter of dismissal. This action is limited to the payment of compensation and, possibly, damages. However, an employee delegate may request the employee's reinstatement in the company.
All disputes relating to discrimination shall be based on the provisions of Article 5 of the Labour Code. Apart from cases of economic dismissal and unfair resignation, the burden of proof lies with the applicant.
The payment of damages will only be granted by the court if it deems the dismissal to be unfair.
The Labour Code and the Law on Judicial Organisation in Niger provide for court rulings on social matters (Articles 289 et seq of the Labour Code).
The law recognises the right of workers to act collectively against their employer through the exercise of their right to strike. This consists of a concerted work stoppage with a view to bringing claims to a successful conclusion or ensuring the defence of their material or moral interests (Article 320 of the Labour Code). The exercise of this right is subject to a special procedure including prior conciliation or possibly arbitration under Articles 322 to 335 of the Labour Code.
Employees in a dispute before a court competent to hear matters of labour law may appear in person or be represented by a lawyer or a trade union representative with whom he or she is affiliated. The employer shall be represented by his legal representative or by a representative appointed in writing and having special powers. This representative may be a lawyer.
Legal provisions do not provide for the resolution of individual labour disputes by arbitration. However, arbitration is offered in cases of collective labour disputes.
Arbitration awards become enforceable after a period of two clear days during which no opposition has been expressed (Article 331 of the Labour Code). The award may, however, be appealed under the civil cassation procedure.
In the event of a dispute before the courts, the unsuccessful party may be ordered to pay costs, including attorney’s fees.
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