By: Masaar – Technology & Law Community
Conceptualized and commissioned by Access to Knowledge for Development for the Fairwork project, in collaboration with the Oxford Internet Institute and the WZB Berlin Social Science Center, with support from the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ).
Introduction
There is a legislative movement regarding the laws and decisions directly regulating employment, such as the Labor Law and the Social Insurance Law. There is a focus, as well, on legislative boundaries that touch upon or affect employment and the burdens resulting therefrom, such as legislations on Trade Union Organizations and different tax laws. Thus, it is difficult to establish a clear legislative reading reflecting the problems of the current situation. Nevertheless, it is possible to provide a general overview through which we can quickly reflect on the ongoing challenges that are frequently discussed whenever this topic is broached. It might be useful to view these issues from a specific perspective, namely “The Fairwork Principles”, to ensure that there is no confusion among the various overlapping legislations.
Axes of reading legislation from the standpoint of Fairwork Principles
The following principles address the changes that occurred throughout the previous years, as well as some expected changes, such as the Draft Labor Law under discussion by the House of Representatives.
- Fair Pay
Fairwork: “Workers, irrespective of their employment classification, should earn a decent income in their home jurisdiction after taking account of work-related costs and active hours worked. They should be paid on time, and for all work completed.”
The applicable Labor Law provides for a provision through which the National Wages Council (NWC) stipulates the minimum wage. However, the Law does not set clear regulations on the value of wages. It is limited to obliging the employer to pay the wage due to the worker upon the termination of the employment. The new draft Labor Law, on the other hand, obliges the employer to pay the worker’s dues within a period not exceeding seven days, in all cases with no exceptions and prohibits withholding wages or part thereof if there is no legal reason. This shall not apply in case the worker resigned, and his wage shall be paid no later than seven days after resigning. The new Draft Law further stipulates that workers’ wages shall not be less than the minimum wage.
In view of the broader concept of wages, the current Labor Law provides for an annual raise of no less than 7% of the worker’s basic wage. Nonetheless, the new draft law aims at stipulating a firmer provision. It indicates that the minimum annual annual raise shall be equal to 3% of the basic wage upon which the Social Insurance share is calculated. Provisions on this matter still form a point of controversy.
- Fair Conditions
Fairwork: “Platforms should have policies in place to protect workers from foundational risks arising from the processes of work, and should take proactive measures to protect and promote the health and safety of workers.”
The philosophy on which the laws regulating employment were built did not clearly single out a regulatory space through which workers’ rights can be stipulated. One can say that there are shortcomings in defining workers’ rights, as the current legislations provide guarantees that mainly focus on financial rights, namely wages, bonuses, and end-of-service benefits. However, the Law lacks provisions that oblige the employer to commit to security and safety controls and standards, as well as other standards that guarantee fair working conditions. Through the new draft Law, the legislator is trying to provide some qualitative benefits such as maternity leave. For working women, the period of such leave increased from three months in the law in force to four months in the Draft Law. In addition, the number of times women are entitled thereto became three instead of two throughout the period of service. This was opposed by the employers’ representatives. Paid annual leaves became forty-five days, only for specific categories: those who have reached fifty years of age, people with special needs, and dwarves, in contrast to the current law, in which the maximum annual paid leave is thirty days only. In return, the Draft Law reduced paid leaves of the first year of work to fifteen days instead of twenty-one days, whereas the period of twenty-one days shall apply as of the second year.
As for freelancing, the new Social Insurance and Pensions Law of 2019 classified workers into groups that shall fall under the Social Insurance Umbrella. The categories include the employed, employers or the like, Egyptian workers abroad, and irregular employment. The law did not address the problem of freelancing patterns introduced as a result of technological development, which allow working via digital platforms. This issue is more prevalent among freelancers because the applicable law does not include them under any of the four mentioned categories. Even if freelancing is considered a form of irregular employment, the issue remains unresolved because the Social Insurance Law specified certain jobs that shall fall under the category of irregular employment rather than others.
- Fair Contracts
Fairwork: “Terms and conditions should be transparent, concise, and always accessible to workers. The party contracting with the worker must be subject to local law and must be identified in the contract. Workers are notified of proposed changes in a reasonable timeframe before changes come into effect. The contract is free of clauses which unreasonably exclude liability on the part of the platform, and which prevent workers from seeking redress for grievances. Contracts should be consistent with the terms of workers’ engagement on the platform.”
Employment contracts are considered a thorny issue as they are the basic means of proof of employment. Therefore, the new draft labor law stipulates that an employment contract shall be deemed an indefinite contract, as a rule. If it is a fixed-term contract, the said term shall not be less than a year, and the said contract shall be renewable. The employment contract shall be deemed an indefinite contract in the following cases:
- If the contract is concluded for an indefinite term.
- If the contract is concluded for a definite term and the two parties continue to execute the said contract upon the termination of the term without a written agreement.
- If the contract is concluded for a definite term and the two parties agreed on renewing the said contract for a term that exceeds four years.
The Law stipulates that the contract shall be concluded in quadruplicate, one copy for the Insurance Office, another copy for the Competent Administrative Authority, and a copy for each party. In case the contract is concluded in more than one language, Arabic shall prevail in the event of a conflict between the two versions. The Law stipulates that the employer shall keep the workers’ files for at least five years as of the employment termination instead of one year pursuant to the applicable Law. The new Draft Law grants workers, solely, the right to proof of employment and the rights resulting thereof through any means.
It further stipulates that the resignation shall be in writing, signed by the employer or his agent, and certified by the Administrative Authority. The same applies to resignation withdrawal, as opposed to the current Law, which stipulates that the resignation shall be in writing only. This has been used by employers to arbitrarily force workers to sign a preemptive resignation upon the commencement of employment (signing form no.6). Some employers’ representatives have rejected this point.
- Fair Management
Fairwork: “There should be a documented due process for decisions affecting workers. Workers must have the ability to appeal decisions affecting them, such as disciplinary actions and deactivation, and be informed of the reasons behind those decisions. The use of algorithms is transparent and results in equitable outcomes for workers. There should be an identifiable and documented policy that ensures equity in the way workers are managed on a platform (for example, in the hiring, disciplining, or firing of workers).”
One of the new Labor Law objectives is to prohibit gender-based discrimination in work conditions and environment and to ensure equality among all workers whenever they are under similar conditions as per Article (3) of the draft, which prohibits all forms of discrimination among workers, and Article (49) of the same, which prohibits discrimination against women. However, the provision of this article in its second paragraph disregards this prohibition and poses a form of discrimination against women. The new Labor Law authorizes the Minister of Manpower to determine the circumstances, occasions, and times where women may not be employed, which is an extension of the provision of Article (90) of the current Labor Law. Furthermore, among the objectives of the new draft law is to maintain job security by prohibiting arbitrary dismissal and providing disciplined guarantees for the termination of employment. The Draft Law does not include any exceptions that allow the employer to dismiss workers. It further delegated the imposition of the dismissal penalty to the exclusive jurisdiction of the Labor Court. It also prohibited the dismissal of workers save and except in accordance with the provisions of this Law, even if such was stipulated in the employment contract and agreed upon by the parties thereto. The current Labor Law, on the other hand, allows the employer to dismiss workers only in nine specific cases, known as cases of committing serious misconduct.
Regarding the disciplinary penalties imposed on workers, the Draft follows the same disciplinary penalties stipulated in the law in force and adds certain conditions to some of them, including the requirement of a written warning. It stipulates that the wage deduction penalty shall only apply to the basic wage without including any other amounts. The Law assigns the Department of Legal Affairs to be the competent authority responsible for investigating the worker as a public asset. In case there is no such department, the issue shall be referred to an expert or one of the workers of the establishment whose job level is not of less rank than that of the worker under investigation to ensure impartiality. In contrast, the Law in force assigns the same to the employer. As for the right to strike, the Draft Law grants it on the condition that workers resort to the Trade Union Organization to announce the strike. It requires notifying the employer and the competent administrative authority ten days before the strike begins. It, however, prohibits holding strikes in exceptional circumstances, without providing a definition or standard for “exceptional circumstances.” The Draft prohibits striking with the intention of amending a collective labor agreement while it is still effective. It, also, prohibits striking in strategic establishments in which such strikes may disturb national security or hinder the provision of basic services for citizens. It grants the Prime Minister the right to issue a decision specifying these establishments. This form of prohibition is an extension of the current Labor Law.
- Fair Representation
Fairwork: “Platforms should provide a documented process through which worker voice can be expressed. Irrespective of their employment classification, workers have the right to organise in collective bodies, and platforms should be prepared to cooperate and negotiate with them.”
Despite the latest positive amendments to the Law on Trade Union Organizations, there are still other challenges related to the application of the articles thereof. On top of such challenges is the procedural aspect of establishing trade union organizations, and the limits and powers of the executive authority represented in competent administrative authorities referred to by the Law. Sometimes such authorities refuse to receive and file the incorporation documents, which is a violation of the Law. The Law grants such authorities the right to notify the legal representative of the organization if any of the necessary documents for incorporation is incorrect or incomplete within thirty days of the deposit. It further grants the right to resort to Labor Courts in case the organization abides by what is sent in the notification. Such a case shall be considered an unjustified suspension of the establishment and incorporation of trade union organizations, notwithstanding the law stipulating that the legal personality of the labor union shall be registered as of the date of submitting the required documents to the competent administrative authority, and the union may freely exercise its rights as of the registration.
The Law’s Effects on Freelancing
The exercise of the right to organize seems difficult for freelancers who work on their own or for a third party. Freelancing, in its nature, is individual, temporary, or incidental work that is not governed by a certain law regulating it as a profession. Thus, it is not possible to establish a trade union committee on the level of an establishment, but rather a professional trade union committee at the city or governorate level. This requires the agreement of at least fifty self-employed workers who fulfill the membership conditions and who work in similar, connected, or joint industries. They can establish a trade union organization to defend their rights and protect their professional interests. However, challenges related to the executive authority’s understanding of developments on self-employment may stand in the way of ensuring the existence of union representation for self-employed workers.
Summary and Conclusion
The current legislative movement may contribute to legislative changes in employment, but two essential points have to be considered. First, the amendments do not follow a clear philosophy through which all the rules on employment can be seen and considered as a cohesive unit with a harmonious rhythm. The other issue relates to the extent to which current legislation and the amendments thereto are adequate in terms of capturing developments in employment patterns, especially in view of the growing concept of freelancing, and the subsequent changes in traditional employment patterns, as well as the problems associated with this pattern, including contracts, workers’ rights, representation in management, and more.
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