Contributed By Liedekerke Wolters Waelbroeck Kirkpatrick
There has been no change in Congolese employment law in the last 12 months.
In the context of the COVID-19 crisis, the President of the DRC proclaimed a State of Health Emergency on 24 March 2020, which was extended every two weeks until 21 July 2020. On that day, the President proclaimed the exit of the State of Health Emergency.
All measures having an impact on employment that were taken to cope with the COVID-19 crisis are listed below. They were mostly temporary, although the barrier measures are intended to apply on the long run.
Temporary Measures Taken in the Context of the State of Health Emergency
General measures impacting employment in the DRC
Some lockdown measures were adopted by local governors according to the evolution of the epidemic. For instance, a total lockdown was imposed on the municipality of Gombe (business district) in Kinshasa between 28 March and 20 April 2020, another lockdown was imposed on Lubumbashi on April 28th, June 20th and 21st and uly 9th to 11th, and also on Kipushi and Kasumbalesa from July 9th to 11th.
Depending on the situation of each province, lockdown measures were progressively lifted. New measures were announced on 21 July 2020, as part of the exit of the State of Health Emergency strategy. This strategy included three phases:
The practical modalities are to be fixed by the national, provincial and local authorities.
Social distancing and wearing of masks
Social distancing measures and the compulsory wearing of masks were imposed in some cities or municipalities throughout the country (eg, Lubumbashi, municipality of Gombe in Kinshasa, Bukavu and in the Province of Lualaba) during the State of Health Emergency period.
Since 21 July 2020, the President of the DRC made the wearing of masks and respect of social distancing mandatory in all public places.
Any person not wearing a mask in places where it is compulsory is liable to a fine of CDF5,000 (USD2.5 ).
Specific employment measures
In the context of the State of Health Emergency, the following measures applied to employment contracts:
Since 21 July 2020, the companies may expect a return to normal. However, barrier measures must be complied with by both employers and employees (see below).
Social security considerations
The social security system in the DRC is limited to the following sectors: pensions (retirement, survivors' and disability pensions), occupational risks (industrial accidents and occupational diseases), family benefits (prenatal, maternity and family allowances). Thus, no allowance was provided when an employer could no longer provide work for his workers for any reason whatsoever, including a case of force majeure due to COVID-19.
Employers and employees must comply with barrier measures announced by the President of the DRC on 21 July 2020. These are the following:
The status of white-collar or of blue-collar workers, whilst often differentiated in other countries, does not exist as such under Congolese law. In fact, the Congolese Labour Code refers from time to time to white-collar or to blue-collar workers but does not make any distinction in the applicable rules. This means that the same rules will apply to all workers of an undertaking, regardless of whether the activity they perform is more manual (blue collar) or intellectual (white collar).
Congolese law retains only one status, being that of "worker". The terms "white-collar worker" and "blue-collar worker" have no legal definition.
Despite the fact that Congolese law does not distinguish between white-collar workers and blue-collar workers, it nevertheless makes a distinction between seven categories of workers:
These seven categories entail the application of some specific rules, mostly with regard to salary scales.
Types of Employment Contracts
Under Congolese law, an employment contract entered into for a definite period of time is a contract concluded with a fixed term, or for a specific work, or in order to replace a temporarily unavailable worker. Where the contract does not fit into one of the categories described in 2.1 Status of Employee, it qualifies as an employment contract of indefinite duration.
Generally speaking, as regards working conditions, workers employed under a fixed-term contract may not be treated less favourably than comparable permanent workers solely on the ground that they are hired for a fixed period (or a specific task, or in order to replace a temporarily unavailable worker), unless difference in treatment is justified by objective reasons. Where justified, their rights may be determined in proportion to the duration of the contract.
Specific rules apply to fixed-term contracts (eg, succession of fixed-term contracts).
Specific rules also apply to what is called “daily labour” under Congolese law; that is, contracts concluded on a day-by-day basis. Where such contracts are concluded for more than 30 days of work within a period of two months, the worker will be deemed to have been hired for an indefinite term.
Congolese employment law is somewhat ambiguous as to whether there is a requirement to have contracts in writing. It seems that the legislator has left room for oral contracts since the current Labour Code (2002) mentions that a contract that is not in writing will be deemed to have been concluded for an indefinite period of time. However, a Ministerial Decree that pre-dates the current Labour Code of 2002 and was confirmed by a Ministerial Decree of 2011 requires that employment contracts be in writing. In any case, it is strongly recommended that fixed-term employment contracts be in writing in order to avoid any reclassification as open-ended (indefinite) agreements.
When in writing, the employment contracts must include at least the following:
The draft contract must be drawn up in French and submitted to the worker at least two working days before it is signed. Signed copies must be given to the employer, the worker and the authority empowered to endorse the contract.
The employer is required to submit the contract to the National Employment Office (Office National de l’Emploi) for approval within 15 days from the date of signature of the contract. Failure to do so entitles the worker to terminate the employment contract at any time, without having to comply with a notice period. The worker can also claim damages. In the event the National Employment Office refuses to approve the agreement, the latter ends automatically.
Legal Working Time
The legal working time may in any case not exceed 45 hours per week and eight hours per day. These hours do not include the time required for the worker to travel to or from the place of work, unless this time is inherent to the work.
Possibility to Have Flexible Arrangements
Flexible (mutual) arrangements regarding working time are admitted, provided, however, that any hour performed beyond the maximum working hours per day/week will fall under the rules regarding overtime.
The Congolese Labour Code does not specifically address part-time contracts but there is, in this firm's view, no legal restriction to the signing of a part-time contract. The general rules of the Congolese Labour Code will therefore apply to part-time contracts.
Hours worked in excess of the legal working hours will be considered overtime and the worker will then be entitled to an overtime pay.
The overtime pay amounts to a percentage of the corresponding salary:
Minimum Wage Requirements
Since 1 January 2019, the daily minimum wage in the DRC is equal to CDF7.075 for an ordinary labourer function. This minimum wage has not been modified since then.
The wage tension between the ordinary labourer function and the middle management is one to ten.
Thirteenth Month and Variable Remuneration
The Congolese Labour Code does not include any provisions regarding the thirteenth month, nor any specific provision regarding bonuses.
Collective bargaining agreements concluded at the company level or the sectoral level may include specific provisions regarding variable remuneration.
In addition, the parties to an employment contract may always negotiate their working conditions and the employer may always grant a thirteenth month and/or bonuses, having in mind that workers pertaining to the same category of employment should receive the same benefits in order to avoid discrimination issues.
Government Intervention in Salary Increase
Nothing is mentioned in the Congolese Labour Code regarding government intervention in compensation. However, it seems that the Congolese government is currently paying particular attention to wage increases, as demonstrated by the adoption of a Decree in 2018 on salary increase.
Under Congolese law, the employer has the obligation to grant vacation and vacation pay to the workers. The right to vacation pay arises at the end of each year of service counted from date to date. The worker cannot renounce to his vacation rights.
The vacation period must be fixed by mutual agreement at a convenient moment for both parties and fall no later than six months after the right arose.
The duration of the vacation period varies in accordance with the age of the workers. For workers aged 18 and over, the vacation period must at least be equal to one working day per full month of service. For workers below the age of 18, the period is at least equal to one and a half working days per full month of service. These durations are increased by one working day for every five years of occupation with the same or substituted employer.
The vacation pay is equal to the corresponding remuneration, all benefits included, as on the day on which they leave for holiday.
The maternity leave under Congolese law consists of a suspension of the employment contract during 14 consecutive weeks, of which a maximum of eight weeks after delivery and six before delivery. During this period, the mother is entitled to two thirds of her pay (benefits included). The employer may not terminate the employment contract during this period.
When a mother breastfeeds her child, she is entitled to two half-hour rests a day to allow her to breastfeed. These rest periods shall be remunerated as working time.
Incapacity to work
Where the worker is unable to provide his services as a result of sickness or accident, he is entitled to two thirds of his remuneration (benefits included) and to the full family allowances, throughout the period of suspension of the contract.
The Congolese Labour Code provides for the following occasional leave:
These days are not deductible from the legal minimum vacation and cannot be split. The employer must only pay for occasional leave up to a maximum of 15 working days per year.
Confidentiality and Non-disparagement
Nothing is provided in respect of limitations on confidentiality or non-disparagement agreements in general terms under the Congolese Labour Code. Employers are therefore free to include such clauses in the employment contracts or settlement agreements, although it is not very frequent in practice. There is, however, a confidentiality obligation for workers’ representatives who gain knowledge of confidential information in the course of their duties.
The only situation concerning employee liability that is covered by the Congolese Labour Code relates to a termination due to a serious breach by the worker. In such a case, the employer may claim compensation from the worker for the damage directly caused by the worker's gross negligence.
Disciplinary sanctions can also be imposed on workers, depending on the seriousness of the fault committed whilst performing the contract:
Congolese law prohibits non-compete clauses, except under strict conditions:
The non-compete clause may provide for a contractual penalty to be imposed on the worker who violates the clause.
The Code does not provide for a maximum amount. It merely states that, at the request of the worker, the competent court may reduce the penalty to a reasonable amount, should it be considered excessive.
It is a common practice to include a non-compete clause in employment contracts of workers that could effectively compete with the employer after the end of their employment contract. This firm generally recommends the provision of a penalty amount that does not exceed the equivalent of 50% of the remuneration corresponding to the non-compete period.
Nothing is set out in the Congolese Labour Code regarding non-solicitation clauses. It is, however, advisable to include such a clause, usually applicable for a standard period of twelve months following the termination of the employment contract.
This firm has never come across such a clause, save under the more standard form of a non-compete clause.
Nothing related to privacy is mentioned in the Congolese Labour Code. Generally speaking, privacy is mentioned in the Congolese Constitution. Although not expressly stated, it may reasonably be assumed that this provision could be interpreted as applicable within the work sphere.
In addition, there are a few scattered provisions relating to privacy, such as the Ministerial Order of 8 October 2015, which states that "The processing of personal data concerning job-seekers must be kept secret and respectful of privacy. Processing of personal data concerning jobseekers means the collection, storage, combination and communication of all information about them”.
Provisions regarding privacy are therefore not abundant in the DRC. In addition to these few provisions, the international standards – such as the Organisation pour l'harmonisation en Afrique du droit des affaires (the Organisation for the Harmonisation of Corporate Law in Africa, or OHADA) rules and those of the International Labour Organization – will apply.
Generally speaking, the Congolese Labour Code sets that it is prohibited for a foreign or a Congolese company to employ more than 15% of foreign workers in the total workforce. A Ministerial Decree of 2005 sets out the quota for the occupation of foreign workers, which varies per sector and per category of employment. The quota is generally around 2% of the total number of workers of each considered category of personnel (general classification of jobs, foremen and managers) in the undertaking.
Foreigners willing to work in the DRC must be in the possession of a work permit, which will be delivered by the National Commission for employment of foreigners.
Role of Unions
Workers and employers have the right to form unions whose sole purpose is the analysis, defence and development of their professional interests and the social, economic and moral progress of their members. The representation of workers in undertakings is ensured by an elected trade union delegation.
Every worker or employer, without distinction of any kind, has the right to join or to leave a professional organisation of their choice.
Workers enjoy an appropriate protection against all acts of discrimination tending to prejudice their freedom of association. In this respect, it is prohibited for any employer to subject an employment relationship to an affiliation or non-affiliation to any professional organisation and to dismiss a worker or otherwise cause him harm because of his affiliation to a professional organisation and/or participation in trade union activities.
Status of Unions
As to formalities, trade unions must register with the Ministry of Labour and Social Security, and draft articles of association. The Congolese Labour Code states a specific procedure to be followed to set up trade unions.
Trade unions are considered legal entities.
Registered trade unions may form a union, confederation or federation.
Competences of the Employees’ Representative Bodies
Generally speaking, the scope of competence of the delegation extends to all working conditions in the undertaking. More specifically, the union delegation:
In addition, each delegate is individually competent to:
As to their role, the members of the trade union delegation are supervised, trained and monitored in their trade union activities within the undertaking by their respective professional organisations.
Institution of the Employees’ Representative Bodies
The Congolese Labour Code provides that the representation of workers in undertakings or establishments of any kind is ensured by an elected delegation. The mandate of the delegates is of three years and is renewable. The latest elections took place in 2018.
As to their institution, the minimum number of delegates is fixed as follows:
In undertakings in which there are fewer than ten workers, one of the workers may be appointed to represent the other workers.
Election of delegates
The members are elected. Any worker – without distinction as to gender, marital status, nationality or age – may be elected provided that he meets the eligibility criteria (inter alia, being at the service of the employer for at least six months). Delegates are elected by the personnel of the employer (there are also some particular conditions).
Elections are organised by the employer. He will first consult the trade union(s) represented in the establishment and the outgoing delegation, if any, on the elections and will take due account of any observations made by them. The election date must be announced at least three weeks in advance and 15 days before the date of the poll, the employer must draw up and post a list of the workers who do not meet the voting conditions. Should the employer fail with respect to a procedural aspect, it is the Labour Inspectorate that will set the date and, if necessary, organise the elections.
The lists of candidates must be filed not later than six working days before the date fixed for the poll.
The poll will be composed of one or two rounds as the case may be: for the first round, only the trade union or unions legally registered and whose field of activity extends to the undertaking may present candidates. Each list must indicate the name of the organisation filing the list and bear the signatures of its qualified representatives. The poll is closed if the number of valid votes cast is greater than half of the number of registered voters. If not, the election is deemed null and void, and a second ballot is to be held.
For the second ballot, voters may, in conjunction with the trade union, propose new candidates. To be valid, a list filed by electors must bear the names and signatures of a number of electors at least equal to three times the number of delegates to be elected by the electoral college. The election process is closed after the second ballot, irrespective of the number of votes cast.
The collective bargaining agreement is a written agreement on the conditions and the employment relationship between one or more employers or one or more employers' organisations and one or more workers' organisations. It can be concluded either at a sector or at a company’s level. This agreement establishes the individual and collective relations between employers and workers within undertakings and settles the rights and duties of the contracting parties. In any company to which the collective bargaining agreement applies, the latter must be posted in the premises, in a place highly visible and easily accessible to workers.
Collective bargaining agreements may mention provisions more favourable to workers than those of the applicable law but may not derogate from the mandatory legal provisions. The provisions of a collective agreement prevail over provisions set in individual employment contracts and the in-house work rules. To be valid, collective bargaining agreements must include some mandatory provisions set out in the Congolese Labour Code, such as its date, object and names and capacity of the contracting parties.
It is drafted in as many originals as there are parties and must be signed by all the contracting parties. Six additional originals are subject to the visa of the Labour Inspectorate. One copy of the agreement is then filed at the clerk’s office of the labour court and one copy will be sent to the Ministry of Labour and Social Security for publication in the Official Gazette ("Journal Officiel"). Where a collective agreement has been published in the Official Gazette, the Minister of Labour and Social Security may extend all or some of its provisions to all employers and workers pertaining to the same sector.
The provisions of a collective agreement apply to all workers of the categories concerned employed in the undertaking(s) covered by the agreement, unless otherwise provided for in the collective bargaining agreement.
Remedies in Case of Breach
Breach of the agreed obligations stated in a collective bargaining agreement entitles the parties to an action for damages, the terms and limits of which may be stipulated in the collective bargaining agreement.
Grounds for Termination
Any dismissal must be motivated by a valid reason. According to the Congolese Labour Code, a valid reason is a reason based on:
Some potential reasons are flagged in the Code as invalid:
Any termination must be notified in writing by the party who takes the initiative to the other party. Where termination is at the employer's initiative, the letter of notification must expressly state the reason for dismissal. There is no motivation regime a posteriori.
Termination of an indefinite employment contract without a valid reason entitles the worker to reinstatement. Failing this, the worker will be entitled to damages fixed by the labour court (with a maximum amount equivalent to 36 months of the worker’s remuneration).
Any dismissal based on the operational needs of the company, establishment or service is subject to a specific procedure (comply with a hierarchy of dismissals, information of workers' representatives, verification of compliance with the procedure by the Labour Inspectorate, etc).
Where the employer is considering dismissing on grounds relating to the worker's ability or conduct, he must, before any decision is taken, allow the person concerned to present his defence.
A Departmental Order sets out a specific procedure to be followed in the case of collective redundancies (called “massive” redundancies in Congolese law).
A lay-off is to be considered collective if, within a period of one month, it leads to the departure of at least:
To be valid, a collective dismissal needs to be justified either by economic reasons or by the operational needs of the enterprise.
A specific procedure must be followed:
Specific obligations could also be imposed by a collective bargaining agreement concluded at a sectoral and/or the company level.
General Rules Regarding Notice Periods
Notice cannot be given during the periods of suspension of the employment contract, except in the following cases:
The termination of the employment contract must be notified in writing by the party taking the initiative to the other party. Where the termination takes place at the initiative of the employer, the letter of notification must expressly state the ground for the termination.
Duration of the Notice Period
The termination of the contract must be notified in writing by the party who takes the initiative to the other party.
Unless the parties or the collective agreement stipulate a longer period, the notice period is equal to 14 working days as from the day after the notification, where the notice is given by the employer to a personnel member of the general classification of jobs. This period is increased by seven working days per full year of continuous service, counted from date to date. For foremen, the notice period is equal to one month, increased by nine working days per full year of continuous service, counted from date to date. For managers, the notice period is equal to three months, increased by 16 working days per full year of continuous service, counted from date to date.
The notice period to be given by the worker is equal to half the notice period that the employer should have given if he had taken the initiative of termination. It may in no case exceed this limit.
Collective bargaining agreements concluded at sectoral and/or the company level may provide for different notice periods that are more favourable to the workers.
Parties’ Obligations During the Notice Period
During the notice period, the employer and the worker remain bound by all their contractual obligations.
During same period, the worker is entitled to one paid day off per week in order to find a new position.
Indemnity in Lieu of Notice
Termination of an open-ended contract without notice or without full observance of the notice period will entail the payment of an indemnity in lieu of notice, corresponding to the remuneration and benefits in kind that the worker would have received during the (part of the) notice period that was not granted.
Specific Procedure in case of Dismissal for Economic Grounds or for a Reason Linked to the Conduct or Ability of the Worker
There is a specific procedure to follow in the case of a dismissal based on economic grounds. The employer must inform the workers’ representatives and the Labour Inspectorate, which will verify the grounds for dismissal and compliance with the procedure.
For a dismissal based on the conduct or on the ability of the worker, the latter must imperatively be allowed to defend himself against the reproaches made before any decision is taken.
Specific Procedure in Case of Dismissal of a Workers’ Representative
The dismissal of a workers’ representative must be pre-approved by the Labour Inspectorate.
General Principles Applicable to Dismissals for Serious Cause
A party is deemed to have committed a serious misconduct when the rules of good faith do not allow it to require the other party to continue to perform the contract.
The employer commits a serious misconduct when they seriously breaches the obligations of the contract, in particular in the following cases:
The worker commits a serious misconduct when they seriously breaches the obligations of the contract, and in particular when they:
The party to the contract deciding to put an end to the employment contract for serious cause committed by the other party must notify the other party in writing of their decision within 15 working days after having gained knowledge of the facts he invokes.
For the purpose of investigation, the employer may, within two working days after having gained knowledge of the facts, notify the worker of the suspension (for a maximum of 15 days) of their duties. The notification in writing may be sent either by registered letter through the post office or delivered to the person concerned with acknowledgement of receipt, or, in the event of refusal, in the presence of two witnesses.
The employment contract will be immediately terminated, without notice.
The party terminating the employment contract for serious cause committed by the other party may seek further compensation (damages) before courts.
Any employment contract may be terminated by a mutual consent agreement. There is no specific requirement.
There are no statutory requirements for enforceable releases or other limitations on termination agreement terms.
There is no specific regime of protection; eg, entitling the workers to a certain compensation (lump sum) for a dismissal that would have been based on a protected criteria. However, the Congolese Labour Code includes some provisions that aim to protect some categories of workers against dismissal (for instance, women during their maternity leave). The Congolese Labour Code also lists some criteria that are invalid reasons for dismissal (see 7.1 Grounds for Termination).
It is prohibited for an employer to dismiss a worker or otherwise prejudice him because of his affiliation to a professional organisation and/or participation in trade union (delegation) activities. It is also prohibited to dismiss a worker for his union (non-)affiliation, or participation in union activities outside working hours, or, with the employer's consent, during working hours. Damages can be claimed (a maximum 36 months of remuneration).
Grounds for a Wrongful Dismissal Claim
The Congolese Labour Code flags some invalid dismissal grounds:
In the event that a dismissal is based on one of these grounds, it will be deemed abusive. The list is non exhaustive, meaning that an employer must be careful when dismissing and make sure he has a valid ground for dismissal.
Consequences of a Wrongful Dismissal
Termination of an employment contract of an indefinite term without a valid reason entitles the worker to reinstatement. Failing this, the worker will be entitled to damages fixed by the labour court (with a maximum amount equivalent to 36 months of the worker’s remuneration).
The Congolese Labour Code states two particular discrimination issues: pregnancy and affiliation to a union delegation.
As to pregnancy, it cannot be a source of discrimination in employment. In particular, it is prohibited to require a woman who applies for employment to submit to a pregnancy test or to present a certificate attesting the state of pregnancy, except for work that is totally or partially forbidden to pregnant or breastfeeding women, or that involves a recognised or significant risk to the health of the woman and the child.
As to the workers’ representatives, they enjoy an appropriate protection against all acts of discrimination that aim to impair their freedom of association. In this respect, it is prohibited for any employer to subject an employment relationship to a (non-)affiliation to any professional organisation and to dismiss a worker or otherwise cause him any harm because of his affiliation to a professional organisation and/or participation in trade union activities.
Nothing is mentioned in the Congolese Labour Code regarding the burden of proof. It may reasonably be assumed that, without any specific rule thereof, it is the worker who invokes a discrimination that must prove that he is effectively a victim of discrimination.
The worker could claim compensation before courts.
There are no specialised employment forms and class actions are not available as such.
Parties can always be assisted by a lawyer.
Under the OHADA Treaty and OHADA Uniform Act on Arbitration (Article 2, indent 1), “Any natural or legal person may resort to arbitration with respect to any rights that may be freely disposed of”.
It has been judged by the Appeal Court of Abidjan, Ivory Coast, that conflicts relating to the performance or termination of the employment contract may be subject to arbitration in the OHADA countries (Appeal Court of Abidjan, ord. nr. 1435, 27 March 2003 (short proceedings)). However, this decision has been criticised because “arbitration is not compatible with the mandatory rules of employment law”.
The OHADA Common Court of Justice (CCJ) found in a judgment of 28 April 2016 that the CCJ has no jurisdiction on disputes in relation to labour law.
Hence, the matter is debatable. One can, however, reasonably consider that a worker is free to resort to arbitration, once the dispute has arisen (but not before).
It is worth noting that a uniform act on employment law is expected but still under discussion (which started in 2006). This uniform act will probably address this topic.
A prevailing employee cannot be awarded attorney's fees.
Immeuble TILAPIA, 3ème étage
Avenue Batetela No 70
Commune de la Gombe - Kinshasa
République Démocratique du Congo
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